Hospital Liability for Physicians, Nurses, and Residents

Overview

A patient injured in a Quebec hospital rarely deals with a single caregiver. An emergency physician makes the first decision, a nurse administers the treatment, a checks on the patient overnight, and a surgeon operates the next morning. When one of them commits a fault (faute), the patient's lawyer must decide whether the hospital can be made to answer for it, and on what basis. The answer differs sharply according to who committed the fault. Physicians are, as a rule, not employees of the hospital, so the hospital does not answer for their medical acts under art. 1463 CCQ. Nurses are employees, so the hospital ordinarily does answer for them, unless a physician has taken direct control of the task. Residents are employees who also perform medical acts under the supervision of a staff physician, and their status shifts from one act to the next. This note, the twelfth in the series on medical liability, continues the previous note on the nature of the patient-hospital relationship and works through each of the three categories with the cases that define them.

Learning Objectives

State the rule in Hôpital de l'Enfant-Jésus c. Camden-Bourgault and explain why a hospital does not answer for a physician's medical fault under art. 1463 CCQ.
Apply the momentary analysis to a nurse who acts under a physician's direct control, using Perron, Charbonneau, and Battikha.
Describe the dual status of the resident and determine, on a given set of facts, whether the hospital or the supervising physician answers for the resident's fault.

The Regime Comes First

Before asking whether a hospital answers for a given caregiver, the analysis must settle the regime governing the patient's relationship with the institution, because the answer to the second question depends on the first. The previous note traced that debate. Under the contractual reading associated with Lapointe c. Hôpital Le Gardeur, a hospital that undertakes to provide care answers for everyone who performs that care on its behalf, physicians included, without any need to prove a . Under the extra-contractual reading (responsabilité civile extracontractuelle), which the Court of Appeal adopted for the emergency setting in Camden-Bourgault, the hospital answers for the fault of another person only through art. 1463 CCQ, and that article requires three things: a relationship of subordination, a fault by the , and a fault committed in the performance of the employee's duties.

The practical consequence explains why the contractual thesis mattered so much to plaintiffs, and why the course notes describe a continuing effort to confine Camden-Bourgault, which changed the law as it stood after Le Gardeur, to its facts. Once the relationship is extra-contractual, the entire question of hospital liability for a physician's fault turns on whether the physician is the hospital's employee. The case law answers that question in the negative.

One procedural rule applies across all three categories discussed below. In Quebec, a plaintiff who has identified a faulty employee should always sue that employee personally, together with the presumed employer. If the court later finds that the employee acted outside the performance of their duties, or that the relationship of subordination had migrated to someone else, a claim brought against the employer alone fails entirely. Suing both the wrongdoer and the employer preserves every recourse.

The Fault of Physicians

The Rule in Camden-Bourgault

Hôpital de l'Enfant-Jésus c. Camden-Bourgault, [2001] R.J.Q. 832 (C.A.), is the reference point. A patient arrives at the emergency department, the emergency physician commits a fault, and the patient sues the hospital. The Court of Appeal (Cour d'appel) held that the physician is not an employee of the hospital, so there is no under art. 1463 CCQ. Nothing in the record reproached the hospital for its own organization, and without such a reproach the hospital could not be liable.

The reasoning proceeds from the two holdings summarized in the previous note. The relationship between the patient and the hospital at the emergency department is extra-contractual, not contractual. And no relationship of subordination exists between a hospital and a physician performing a medical act, because the institution exercises no control over that act. Without a fault of its own, in its organization or otherwise, the hospital therefore incurs no liability.

The point the student must retain is the second proposition, which the course notes state in capital letters: a physician is not an employee of the hospital. Whatever the hospital's administrative power over the physician's appointment and privileges, it does not direct the exercise of medical judgment, and art. 1463 CCQ requires direction.

Article 236 and the Later Decisions

The rule now rests on statute as much as on case law. Article 236 of the Act respecting health services and social services provides that a physician, dentist, or midwife, other than a manager of the institution, is deemed not to form part of the institution's personnel. The provision codifies the absence of any relationship of subordination between the hospital and the physician performing a medical act.

Three later decisions applied the rule without hesitation. In Giroux c. Centre hospitalier régional de Trois-Rivières, 2012 QCCA 1611, the Court of Appeal reaffirmed that physicians in Quebec are neither the employees nor the servants of hospital centres. In Apponi c. CHUM Hôpital Notre-Dame, 2019 QCCS 329, the Superior Court (Cour supérieure) held that the treating physician and the other physicians who had cared for the plaintiff were not and had never been employees of the CHUM. They were physicians practising their profession exclusively and autonomously within the institution, exactly as art. 236 contemplates. And in Duval c. Centre universitaire de santé McGill, 2022 QCCQ 201, a small-claims decision, the court accepted the hospital's argument on this point, restating the Court of Appeal's conclusion that a fault committed in the performance of a medical act by a physician cannot have been committed under the control and supervision of a hospital centre, so that absent a specific fault of the hospital, its liability cannot be engaged. As the nursing section below shows, the same decision found the hospital liable on a different footing.

When the Hospital Still Answers for a Physician's Error

Camden-Bourgault closes the door to art. 1463 CCQ but leaves art. 1457 CCQ open. The hospital cannot answer for the physician's fault as such, but it can answer for its own fault in relation to that physician. The course notes give two illustrations: a lack of resources that made competent care impossible, and the institution's tolerance of an incompetent physician. In the second scenario, the plaintiff's theory is that the hospital, acting through its administrators, committed a fault by allowing a physician known to be incompetent to continue practising, and that this fault caused the injury (préjudice). The action is brought under art. 1457 CCQ, and the plaintiff must prove the hospital's own fault on the ordinary standard: a characterized fault in its supervision and tolerance of the physician.

Two features of this recourse deserve emphasis. First, the course notes describe it as highly hypothetical; proving that a hospital's administrators knew or should have known of a physician's incompetence and did nothing is far harder than proving a single faulty act. Second, it is a claim for direct institutional fault, of the kind discussed under direct hospital liability in the earlier notes, and not a claim for the act of another. The distinction governs what must be pleaded and proved.

The Openings Left by Battikha and CDDM

The categorical rule has never been entirely airtight. In Hôpital de Chicoutimi c. Battikha, [1997] R.J.Q. 2121 (C.A.), the Court of Appeal observed that a physician may sometimes become an employee of the hospital, as the Supreme Court of Canada had concluded in Martel c. Hôpital St-Vallier when examining the liability of an . In a different situation, such as the Laurent case, there is no relationship of subordination and the physician remains an independent professional who alone answers for their faults. The court also recalled the division of roles described in Hôpital général de la région de l'Amiante: where the fault occurs at the post-operative stage and is committed by hospital personnel, the surgeon responsible for the operation does not answer for it, because the surgeon does not become the employer, even momentarily, of that personnel; conversely, the hospital would not answer for a fault committed during the operation by a professional who remains independent.

The course notes treat the anaesthetist cases as a category of their own and stress that, as the law stands today, a physician is not an employee of the hospital. The plaintiff proceeds under art. 1457 CCQ against the hospital for its own fault, or under art. 1463 CCQ against the employer of a genuine employee, and not otherwise.

A second opening appears in Collectif de défense des droits de la Montérégie (CDDM) c. Centre hospitalier régional du Suroît, 2011 QCCA, decided in the context of a proposed class action. The Court of Appeal acknowledged that Camden-Bourgault found no employer-employee relationship between a hospital and the emergency physician on duty. It then noted three points of difference. The legislative framework relevant to Camden-Bourgault had been amended in 1991. At the time of the proposed action, the hospital had put in place protocols on the use of restraint and isolation measures that were applied by physicians and hospital staff alike. And the plaintiffs' allegations described a faulty organizational culture in which the acts of physicians, nursing staff, and the institution were intertwined, so that a criticism of the arbitrary segmentation of the various professional acts could take on its full meaning. On those facts, the court considered that the context differed from Camden-Bourgault and might justify distinct conclusions.

CDDM overrules nothing. It signals that where institutional protocols govern the conduct of physicians and staff together, and where the fault alleged is one of organization rather than an isolated medical judgment, the hospital's own fault under art. 1457 CCQ may be considerably easier to establish than the "highly hypothetical" scenario of the incompetent physician suggests.

The Fault of Nurses

Nurses as Employees of the Hospital

The analysis for nurses starts from the opposite presumption. In Hôpital général de la région de l'Amiante Inc. c. Perron, [1979] C.A. 567, the Court of Appeal contrasted the two positions: nursing staff are chosen and paid by the hospital, whereas the physician is admitted to practise by the board of directors but remunerated by the government. As a general rule, nurses are employees of the hospital, as are technicians in the various disciplines, and the normal performance of their duties consists in giving the care and treatment that the physician prescribes or that the hospital must provide.

Perron also drew the boundary of the physician's control in the recovery-room setting. Even though the anaesthetist has overall direction of the recovery room, the anaesthetist is not, absent contrary indication, required to accompany the patient, remain at the bedside, or supervise the patient during transport from the operating room to the recovery room. Hospital personnel ordinarily perform those functions, calling on the anaesthetist when required. Those are duties for which the hospital employs its nursing staff, and a fault in their performance is the hospital's to answer for.

The Momentary Employer

The presumption gives way when a physician takes control of the task. The relationship of subordination can transfer: someone takes charge, and for that act the nurse becomes the physician's employee rather than the hospital's. Charbonneau c. Centre hospitalier Laurentien, 2009 QCCS 4974, states the two sides of the rule. A hospital centre is in principle liable, whether contractually or under the legal regime, for the acts of its employees, including nursing staff, medical students, and residents. The physician, by contrast, cannot in principle be held liable for the acts or omissions of the hospital's nursing staff, medical students, or residents. The physician may, however, be held liable for acts the physician could have performed personally but chose to entrust, under direct supervision or control, to a nurse, a medical student, or a resident. When the physician delegates acts in that way, the delegates cease to be employees of the hospital and become employees of the physician.

The test is therefore concrete and act-specific. It asks who directed and controlled the particular act at the moment it was performed, not who pays the salary. A nurse administering a prescribed medication on the ward performs a hospital function. The same nurse assisting a surgeon who directs each step of a procedure may, for that step, be under the surgeon's control.

Battikha shows the limits of the transfer argument. A sponge was left in the patient's abdomen after an operation. The physicians and the hospital compensated the patient and then went to court to determine who bore the loss between them. The sponge count fell to the nurse, and the question was who answered for her. Traditionally, the hospital does. The hospital pleaded the "" doctrine, arguing that it was the surgeon's job to see to the count. The Court of Appeal rejected the image of the surgeon as "emperor of the operating room" and held that the hospital answers for its nurse. Presence in the operating room does not, by itself, make the surgeon the of every member of the team; the transfer requires actual direction and control of the specific act.

The Pivot Nurse and the Hospital's Mission

Duval c. Centre universitaire de santé McGill, 2022 QCCQ 201, though a small-claims decision, illustrates the reasoning well. A young man died from complications of diabetes that developed during his chemotherapy treatments. Over the six months of treatment, he saw his treating physician only once a month; his frequent contact was with the CUSM's nursing staff, and his was responsible for following his treatment plan.

The court described the pivot nurse in oncology as a central rather than an accessory participant, relying on a document titled Rôle de l'infirmière pivot en oncologie prepared by the Comité consultatif des infirmières en oncologie under a mandate from the Direction de la lutte contre le cancer of the Ministère de la Santé et des Services sociaux. That document, which the course notes classify as soft law, presents the pivot nurse as the patient's principal point of reference, a clinical leader within the multidisciplinary team, and the person expected to anticipate problems during treatment and reduce their consequences.

Against that standard, the record was empty. The medical file filed by the CUSM ran to more than 200 pages, all of which the court read, and it contained a single two-line note from the pivot nurse recording a telephone follow-up on 22 December 2015 about urinary difficulties and pain. There were no notes of meetings with the patient or with any member of the multidisciplinary team, and no reaction to the note made at the last treatment on 8 January by the receiving nurse that the patient complained of neuropathy in his toes, commonly called diabetic foot syndrome. The court refused to accept that this was all the pivot nurse's role could amount to, when the legislator had given it such importance. The role had not been performed as a person acting reasonably in the circumstances would have performed it.

The conclusion is framed as a failure of the hospital's own mission: in treating the patient, the CUSM had failed in its primary duty to provide diagnostic services appropriate to the evolution of his medical condition and to ensure that his needs were assessed promptly so that he received appropriate care, including nursing care and specialized psychosocial services. The decision thus combines both routes to hospital liability discussed in this note. The pivot nurse's fault is that of a hospital employee, and the hospital's failure to organize the follow-up is a fault of its own.

Specialized Nurse Practitioners

The nurse cases assume a nurse who executes what a physician prescribes. That assumption is weakening. Under art. 36.1 of the Nurses Act (Loi sur les infirmières et les infirmiers, RLRQ c I-8), a authorized by regulation may, according to her class of specialty, diagnose illnesses, prescribe diagnostic examinations, use invasive or risk-bearing diagnostic techniques, determine medical treatments, prescribe medications and other substances, prescribe medical treatments, use techniques or apply medical treatments that are invasive or carry a risk of injury, and follow pregnancies. Articles 23 to 27 of the Regulation respecting specialized nurse practitioners (RLRQ c I-8, r 15.1.1.1) refer to that provision.

Those activities are precisely the ones that, when performed by a physician, are said to escape the hospital's control. The course notes raise the resulting question without answering it: whether the relationship of subordination disappears for a specialized nurse practitioner whose acts approach those of an independent professional, and who might therefore be expected to carry her own insurance. The case law is too recent to support any conclusion.

The Fault of Residents

Learners Who Are Also Employees

Residents are physicians in training. The temptation is to assimilate them to physicians and to conclude that the hospital does not answer for them. The law takes the opposite view. Even though they are physicians who are still learning, residents are employees of the hospital. The statutory basis is read a contrario: the provision deems physicians, dentists, and midwives not to form part of the institution's personnel, and it does not mention residents, who therefore remain part of it. Doctrine agrees. Alain Bestawros writes that residents are considered employees of the hospital bound by a contract of employment (contrat de louage de services), and that the case law generally recognizes them as the hospital's employees.

The scope of what a resident may do is fixed by regulation. Article 10 of the Regulation respecting the professional activities that may be engaged in by persons other than physicians (RLRQ c M-9, r 12.1) authorizes the resident to perform, among the professional activities reserved to physicians, those that correspond to their level of training and are required to complete their postgraduate training, on two conditions. The activities must be performed in the training settings required to attain the objectives of the rotation, as indicated on the resident's . And they must be performed under the supervision of competent persons and in compliance with the rules applicable to physicians, including those on professional ethics, the issuing of prescriptions, and the keeping of records and offices.

Supervision is thus built into the resident's authority to act, and that is what produces the dual status. For hospital functions, the resident is the hospital's employee. For medical acts performed under the direction of a staff physician, the resident falls under the supervising physician's control, and the momentary employer analysis applies.

Dual Status in the Case Law

Tabah c. Liberman, [1990] R.J.Q. 1230 (C.A.), addressed the hospital side of the line. The Court of Appeal held that, having assumed the task of following the patient's progress after the surgical intervention, the hospital and not the surgeon had to answer for the fault of the hospital personnel assigned to that purpose. The court also declined to find that the surgeon committed a fault by leaving the hospital at about 6:15 p.m. and leaving the patient under the supervision of the hospital's employees, including the senior and junior residents. Nothing in the record supported such a fault. Post-operative monitoring by residents is a hospital function, and the residents performing it are the hospital's employees.

Lamarre c. Hôpital du Sacré-Cœur, EYB 1996-86833 (C.S.), addressed the physician side. The Superior Court examined the position of one physician separately because of his double status as physician and resident. He was an employee of the hospital when performing certain acts, in particular visits to the patient's room, but he reported directly to the cardiologist who was his supervisor and under whose supervision he performed a coronary angiography. At the moment he examined the patient, whether during the catheterization or the compression that followed, he acted as a physician under the sole responsibility of his immediate supervisor. There was then no relationship of subordination with the hospital.

Read together, the two decisions give the operative rule. The question is never whether the person is a resident but what the person was doing, and under whose direction, when the fault occurred. Ward rounds and post-operative monitoring are hospital care, and the hospital answers. An invasive procedure carried out under a staff physician's supervision is a medical act, and the supervising physician answers as momentary employer, without the hospital.

Worked example: sorting liability across the care team

A patient is admitted through the emergency department of a teaching hospital with abdominal pain. The emergency physician misreads the imaging and discharges her; she returns two days later with a ruptured appendix. A surgeon operates that night, assisted by a second-year resident who, under the surgeon's direct instruction, places the final sutures. A nurse in the operating room performs the sponge count. On the ward the following morning, a junior resident on rounds fails to notice signs of internal bleeding, and a nurse administers a dose of anticoagulant that a physician had prescribed in error.

The hospital does not answer under art. 1463 CCQ for the emergency physician's misreading, which is a medical act by a non-employee (Camden-Bourgault, art. 236 LSSSS). Any claim against the hospital for that error would require proof of the hospital's own fault under art. 1457 CCQ, for instance that it knowingly tolerated an incompetent physician. The resident's sutures were placed under the surgeon's direct control, so the surgeon is the momentary employer for that act (Charbonneau, Lamarre). The sponge count is a nursing function performed by a hospital employee, and the hospital answers for it regardless of the surgeon's presence (Battikha). The junior resident's failure on rounds is a hospital function, so the hospital answers (Tabah, Lamarre). The nurse who administered the erroneous prescription performed a hospital function, and the hospital answers for her act, while the prescribing physician answers personally for the prescription. In each case, the patient's lawyer sues the individual wrongdoer together with the person identified as employer.

Practice Checklist

Regime

Determine whether the patient-hospital relationship is contractual or extra-contractual on the facts (direct arrival at emergency, prior consultation with a physician, admission).
Under the extra-contractual regime, confirm that the three conditions of art. 1463 CCQ can be pleaded: relationship of subordination, fault of the employee, fault in the performance of duties.

Physicians

Confirm that the person who committed the fault is a physician performing a medical act; if so, treat art. 1463 CCQ as unavailable against the hospital (Camden-Bourgault, Giroux, Apponi, art. 236 LSSSS).
Look for a under art. 1457 CCQ: lack of resources, tolerance of a known incompetent physician, deficient protocols, or an organizational culture in which physician and staff acts are intertwined (CDDM).
Check whether the physician is an anaesthetist or otherwise falls within the exceptional situations noted in Battikha and Martel.

Nurses

Start from the presumption that the nurse is the hospital's employee (Perron).
Identify the specific act and ask whether a physician directed and controlled it; if so, plead the physician as momentary employer (Charbonneau).
Do not assume that the surgeon's presence in the operating room makes the surgeon the employer of the nursing team (Battikha).
Where a coordinating role such as the pivot nurse is involved, consider pleading both the nurse's fault and the hospital's failure of organization (Duval).
Flag any specialized nurse practitioner and note the unresolved status question.

Residents

Treat the resident as a hospital employee by default (art. 236 LSSSS a contrario, Bestawros).
Classify the faulty act: hospital care (rounds, post-operative monitoring) or medical act under a staff physician's supervision (Tabah, Lamarre).
Verify that the act fell within the resident's level of training and was supervised as art. 10 of the Regulation requires.

Procedure

Sue the individual wrongdoer together with every plausible employer, so that no finding on the relationship of subordination leaves the plaintiff without a defendant.

Glossary

anaesthetistanesthésiste: The physician responsible for anaesthesia and the overall direction of the recovery room, treated in the case law as a special case on the question of subordination to the hospital.
art. 236 LSSSS: The provision of the Act respecting health services and social services under which a physician, dentist, or midwife who is not a manager of the institution is deemed not to form part of its personnel.
captain of the shipcapitaine du navire: The argument, rejected in Battikha, that the surgeon answers for every member of the operating room team by virtue of leading the operation.
direct fault of the hospitalfaute propre de l'hôpital: Fault attributable to the institution itself, through its administrators and its organization of care, actionable under art. 1457 CCQ without proof of any relationship of subordination.
employeepréposé: A person who performs a task under the direction and control of another, whose fault in the performance of duties engages the employer's liability under art. 1463 CCQ.
employercommettant: The person holding the power of direction and control over an employee, and bound to make reparation for the employee's fault under art. 1463 CCQ.
liability for the act of anotherresponsabilité du fait d'autrui: The rule under which a person answers for injury caused by the fault of another for whom they are legally responsible; art. 1463 CCQ is the principal instance in the hospital setting.
momentary employercommettant momentané: A person who, for a specific act, takes over the direction and control of someone who is ordinarily another's employee, so that the relationship of subordination migrates for that act alone.
pivot nurseinfirmière pivot: The oncology nurse designated to coordinate and follow a cancer patient's treatment plan within a hospital.
relationship of subordinationlien de préposition: The power to direct, supervise, and control the manner in which another person performs a task; the first condition of art. 1463 CCQ.
residentrésident: A physician in postgraduate training who is authorized to perform reserved medical activities corresponding to their level of training, under supervision, and who is, by default, an employee of the hospital.
rotation cardcarte de stages: The document identifying the training settings in which a resident is authorized to perform reserved activities.
specialized nurse practitionerinfirmière praticienne spécialisée: A nurse authorized by regulation to perform certain activities otherwise reserved to physicians, such as diagnosing illnesses and prescribing treatments.

References and Further Reading

Civil Code of Quebec: arts. 1457, 1463.
Act respecting health services and social services (Loi sur les services de santé et les services sociaux): art. 236.
Nurses Act (Loi sur les infirmières et les infirmiers, RLRQ c I-8): art. 36.1.
Regulation respecting specialized nurse practitioners (Règlement sur les infirmières praticiennes spécialisées, RLRQ c I-8, r 15.1.1.1): arts. 23 to 27.
Regulation respecting the professional activities that may be engaged in by persons other than physicians (Règlement sur les activités professionnelles qui peuvent être exercées par des personnes autres que des médecins, RLRQ c M-9, r 12.1): art. 10.
Case law on physicians: Hôpital de l'Enfant-Jésus c. Camden-Bourgault, [2001] R.J.Q. 832 (C.A.); Giroux c. Centre hospitalier régional de Trois-Rivières, 2012 QCCA 1611; Apponi c. CHUM Hôpital Notre-Dame, 2019 QCCS 329; Duval c. Centre universitaire de santé McGill (CUSM), 2022 QCCQ 201; Hôpital de Chicoutimi c. Battikha, [1997] R.J.Q. 2121 (C.A.); Martel c. Hôpital St-Vallier and the Laurent case, both as discussed in Battikha; Collectif de défense des droits de la Montérégie (CDDM) c. Centre hospitalier régional du Suroît du Centre de santé et de services sociaux du Suroît, 2011 QCCA; Lapointe c. Hôpital Le Gardeur.
Case law on nurses: Hôpital général de la région de l'Amiante Inc. c. Perron, [1979] C.A. 567; Charbonneau c. Centre hospitalier Laurentien, 2009 QCCS 4974; Hôpital de Chicoutimi c. Battikha; Duval c. Centre universitaire de santé McGill (CUSM).
Case law on residents: Tabah c. Liberman, [1990] R.J.Q. 1230 (C.A.); Lamarre c. Hôpital du Sacré-Cœur, EYB 1996-86833 (C.S.).
Doctrine and soft law: Alain Bestawros on the status of residents; Comité consultatif des infirmières en oncologie, Rôle de l'infirmière pivot en oncologie (Direction de la lutte contre le cancer, Ministère de la Santé et des Services sociaux).

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.