The Nature of the Patient-Hospital Relationship

Overview

A patient injured in a Quebec hospital will often want to sue the institution as well as the physician who treated them. Whether the claim against the hospital can succeed depends on a preliminary question: is the relationship between patient and hospital contractual, governed by art. 1458 CCQ, or extra-contractual (responsabilité civile extracontractuelle), governed by art. 1457 CCQ? The answer decides whether the hospital answers for the of a physician who is not its . For more than a decade after Lapointe c. Hôpital Le Gardeur, the Quebec Court of Appeal (Cour d'appel) treated the relationship as contractual whenever the patient was conscious. In Hôpital de l'Enfant-Jésus c. Camden-Bourgault, the same court reversed course and held that a patient arriving at the emergency department stands in an extra-contractual relationship with the institution. This note sets out why the classification matters, follows the debate through the case law and doctrine, states the solution that now prevails, and identifies the situations in which a contractual analysis may still have a role.

Learning Objectives

Explain why classifying the patient-hospital relationship as contractual or extra-contractual changes the outcome of a claim against the hospital.
Contrast under art. 1463 CCQ with the contractual maxim .
State the two holdings of Camden-Bourgault and identify how Goupil and Roy c. Mout applied them.

Preliminary Remarks on the Two Liability Regimes

Conceptual Unity of the Two Regimes

Article 1458 CCQ provides that every person has a duty to honour the undertakings they have contracted. A person who fails in that duty is liable for the bodily, moral, or material injury caused to the other contracting party and must make reparation for it. The second paragraph adds that neither party may then escape the rules of the contractual regime to opt for rules that would be more favourable to them. Article 1457 CCQ, by contrast, imposes on every person a general duty to abide by the rules of conduct that the circumstances, usage, or law dictate, and makes them liable for injury caused to another by their fault (faute).

Professor Baudouin describes the two orders of liability as resting on a single concept. At the base of each lies a fault which, if it causes injury, obliges its author to make reparation. A fault is a breach of a pre-existing obligation. In the contractual setting, that obligation is easier to identify because it flows from the express or implied terms of the undertaking, so that fault coincides with non-performance. Outside a contract, the identification is more delicate: civil fault is a breach of the general duty imposed on every member of society not to cause illegitimate injury to another and to conduct oneself in accordance with the law and usage.

On this view, the differences between the regimes fade. Both produce an obligation of reparation arising from the breach of a pre-existing obligation, whether conventional or legal. Baudouin identifies one remaining distinction. Extra- generally results from the breach of a permanent, legal obligation not to act, and arises from a juridical fact. Contractual liability may result from a breach of an obligation to do or not to do, is temporary, and takes its source in a juridical act.

Why the Choice of Regime Matters

Despite this conceptual unity, the choice of regime carries practical consequences: the extent of recoverable damages, the availability of solidarity (obligation solidaire), and the application of presumptions all differ. As a general matter, the extra-contractual regime is the more attractive one for a plaintiff. On one point, however, the contractual regime is markedly more favourable to the victim: liability for the act of another (responsabilité pour le fait d'autrui).

Under the extra-contractual regime, that liability is governed by art. 1463 CCQ, which provides that the (commettant) is bound to make reparation for injury caused by the fault of its employees in the performance of their duties, while retaining its remedies against them. Three conditions must be met:

a fault committed by the employee;
a , meaning that the plaintiff must show that the defendant controlled the person who committed the fault; and
a fault committed in the performance of the employee's duties.

The second condition is the obstacle in hospital cases. Where the person at fault is a physician, the hospital will argue that it exercises no control over the medical act and that no relationship of subordination exists.

Under the contractual regime, a different rule applies. The creditor contracts with the debtor, and the debtor asks a third party to perform the contract. One who acts through another acts oneself: qui facit per alium facit per se. The Court of Appeal applied this rule in Cinépix Inc. c. J.K. Walkden Ltée, [1980] C.A. 283. In contractual matters, the debtor who entrusts performance of an obligation to someone else, even an independent contractor or a competent professional, remains liable toward the creditor, and answers for the fault of the substitute and of the substitute's employees. The court reasoned that the debtor promised a certain result or a certain diligence and assumed the obligation in its entirety. Unless the contract provides otherwise, the debtor therefore guarantees the act of the substitute, even one chosen with care, and even though that substitute is largely a third party in a way that an employee is not. Having voluntarily introduced a filmmaker and his cameraman into the performance of its obligation of diligence toward Walkden, Cinépix answered contractually for the cameraman's fault, just as a lessee answers to the lessor for the fault of a sub-lessee. The court found it unnecessary to decide whether Cinépix had committed a personal fault in failing to supervise the operations.

Applied to the hospital, the difference is stark. If the relationship is contractual, the hospital can be held liable to the patient for the faults of its nursing staff, students, and residents, and even for the faults of physicians. The Collection de droit explains the advantage: the victim need not establish a relationship of subordination, because the hospital becomes directly liable to the patient through the obligations assumed under the . The institution is contractually liable for every injurious act committed in the performance of the agreement, whether by professionals or by others. Several decisions have condemned hospitals on this basis for the faults of students, residents, and nurses, and even for those of professionals.

The victim therefore prefers the contractual regime. It is always better to have several debtors, and under the contractual analysis every person who intervenes in the patient's care, from admission to discharge, engages the hospital's liability without any need to ask whether that person was an employee. Hospitals, for the same reason, prefer the extra-contractual regime: under it, they would never answer for the faults of physicians. The impact on institutions is fundamental, which explains why the classification has been litigated so persistently, and why it matters that the question could have been settled in Lapointe c. Hôpital Le Gardeur but was not.

Worked example: Marie and Paul at the ER

Two patients arrive at the same university hospital on the same evening.

Marie walks into the emergency department of her own accord. The triage nurse directs her to the emergency physician on duty, who examines her, discharges her too early, and fails to tell her which symptoms should prompt her to return. Her condition deteriorates and she suffers permanent injury. If her relationship with the hospital is contractual, she can argue that the hospital undertook to provide care and acted through the physician, so that the hospital answers for everyone who took part in performing that undertaking. If the relationship is extra-contractual, she must fit her claim within art. 1463 CCQ and prove that the physician was the hospital's employee, which the current case law denies.

Paul is brought in unconscious by ambulance and is taken in charge by the same physician. No is possible, so the relationship is necessarily extra-contractual. Paul may sue the physician personally under art. 1457 CCQ, but he cannot hold the hospital liable for the physician's fault unless he establishes a relationship of subordination.

The same logic operates outside the hospital. A skier injured during a lesson because of the instructor's fault contracted with the resort for a safe lesson and may sue the resort contractually, since the resort acted through the instructor. A claim against the instructor personally must be extra-contractual, because the instructor merely performed a contract for another.

The Competing Theses

The Contractual Thesis and Lapointe

The contractual thesis found its fullest expression in Lapointe c. Hôpital Le Gardeur, [1989] R.J.Q. 2619 (C.A.). A young girl sustained a very deep cut to the elbow. The physician who saw her, Dr. Chevrette, arranged her transfer to Hôpital Sainte-Justine. The measures taken were alleged to be inadequate; the child never recovered and was left in a vegetative state. The Court of Appeal concluded that a contract exists as soon as the patient is conscious. On this reasoning, the hospital that receives a conscious patient undertakes to provide care and answers contractually for the physicians through whom it performs that undertaking.

The Supreme Court of Canada allowed the hospital's appeal in Lapointe c. Hôpital Le Gardeur, 1992 CanLII 120 (SCC), without ruling on the classification. The claim against the hospital, the court held, necessarily followed the fate of the claim against Dr. Chevrette. Only if a fault were found against the physician could the hospital's liability be engaged, whether on a legal, delictual, or contractual basis, depending on which thesis prevailed. The competing theories had been fully argued, but always on the assumption that the physician's professional fault would be established. Since no fault was found, the court had nothing further to decide than to allow the hospital's appeal. Any other question would be obiter, and the court considered it neither wise nor appropriate to examine questions of that magnitude in such a context.

Two lessons follow. First, contractual liability for the act of another always requires proof of a fault by the third party who performed the obligation; without a fault by Dr. Chevrette, no path to the hospital's liability existed under either regime. Second, the Supreme Court's silence left the Court of Appeal's 1989 judgment as the governing statement of the law until the Court of Appeal itself revisited it.

The Extra-Contractual Thesis

The opposing view was articulated by Andrée Lajoie, Patrick A. Molinari, and Jean-Louis Baudouin in "Le droit aux services de santé : légal ou contractuel?", (1983) 43 R. du B. 675. These authors argued that the meeting of minds, the essential criterion for the formation of a contract, is absent from the relationship between a patient and a health establishment, because the establishment is not in a position to give genuine consent. On this analysis, the liability of hospitals belongs to the legal sphere, governed by art. 1457 CCQ, and not to the contractual sphere. This thesis was argued before the Court of Appeal in Lapointe, with Baudouin's writing cited in support, and the court expressly disagreed with it.

Professor Robert P. Kouri offered a rejoinder in "L'arrêt Hôpital de l'Enfant-Jésus c. Camden-Bourgault et le contrat hospitalier occulté : aventurisme ou évolution?", (2004) 35-1 R.D.U.S. 307. As in French law, he observed, the is not unknown to Quebec law. The suppression of the double freedom not to contract and to choose one's contracting party is recognized first in certain relations between private persons involving purely individual interests. Among the examples he drew from the Code are the acquisition of co-ownership of a dividing wall (art. 1004 CCQ), the redemption of a right of way (art. 1189 CCQ), and the right of redemption in undivided co-ownership (art. 1022 CCQ). In the case of the promise of reward (art. 1395 CCQ), a forced contract arises even without either party's knowledge. The same is true, Kouri added, where a person exercises a monopoly or offers a service indispensable to society. The absence of a freely given institutional consent does not, on this view, exclude the existence of a contract.

The Predominant Solution

The Court of Appeal settled the debate, at least for the emergency setting, in Hôpital de l'Enfant-Jésus c. Camden-Bourgault, [2001] R.J.Q. 832 (C.A.). The patient, Mr. Bourgault, was diabetic. He fell, was discharged too quickly by the emergency physician, Dr. Brochu, and was not given the information he needed about the warning signs and about when to return to the hospital. He later had to undergo an amputation and eventually died; his widow, acting for his estate, continued the proceedings against both the physician and the hospital.

The physician was found at fault, so the element missing in Lapointe was present, and the Court of Appeal had to address the hospital's liability. At paragraph 43 of the judgment, the court reversed its traditional case law in two respects.

The regime applicable at the emergency department is extra-contractual. The hospital does not obtain the patient's consent, and in an emergency what matters is to provide care. No consent, no contract. The court definitively set aside the contractual thesis it had adopted in Lapointe for the patient who arrives at the emergency department.
The physician is not the hospital's employee. Because the institution exercises no control over the medical act, no relationship of subordination exists, and the hospital cannot be held liable under art. 1463 CCQ for the physician's fault.

The outcome for Mrs. Camden-Bourgault illustrates the stakes. She succeeded against the physician and was compensated, but the action against the hospital was dismissed. From the patient's point of view the decision is a setback: recovery against the physician remains available, but the hospital is no longer answerable for the physician's professional fault, and the victim's task is harder.

Subsequent decisions have confirmed the new orientation. In Goupil c. Centre hospitalier universitaire de Québec, [2001] R.J.Q. 1814, 2001 CanLII 24664 (C.S.), the Superior Court (Cour supérieure) declined to apply the maxim qui agit per alium agit per se so as to make the hospital assume the same obligations as the physicians working within it. That rule, the court explained, may be invoked only within a framework of contractual liability, which was not the framework before it. In Roy c. Mout, 2015 QCCA 69, the Court of Appeal stated that it is well established that the legal framework governing both the hospital-user and the patient-physician relationships is that of .

The rule to retain is therefore the following. The relationship with the hospital is extra-contractual, so the hospital's liability for the act of another passes through art. 1463 CCQ; and since physicians are not the hospital's employees, their faults do not, for the time being, engage the hospital's liability. A hospital may still be held liable in connection with a physician's conduct, but only on the basis of its own fault under art. 1457 CCQ, which requires an element of structure or organization: a defect in the way the institution organized its services, rather than an error in the medical act itself.

Questions That Remain Open

Lapointe said the relationship was always contractual; Camden-Bourgault said it was extra-contractual. The second judgment, however, was rendered in the context of an emergency, and it did not settle every relationship a patient may have with a hospital. Three questions persist.

The Hospital as a Service Provider

Not every patient arrives through the emergency department. In Rizk c. Hôpital du Sacré-Cœur, a patient fell and injured herself during a blood draw, and the contractual regime was applied. The example is instructive. Suppose a physician orders a laboratory test that could be performed anywhere, and the patient, rather than attending a private clinic, chooses to have it done at a particular hospital. The service is a laboratory service, and there is no emergency. It can be argued that the situation differs from Camden-Bourgault and that the relationship is contractual, as it would be with a private clinic. That debate was not joined in Rizk, but the reasoning suggests that Camden-Bourgault may be confined to the emergency setting. When the hospital itself presents its accommodation and ancillary services as those of an innkeeper, the relationship would on that view be contractual. No decision since has resolved the point.

Superimposed Contracts

A second possibility is the superimposition of two contracts: a hospital contract and a . The Court of Appeal touched on this in the class action Fédération des médecins spécialistes du Québec c. Conseil pour la protection des malades, 2014 QCCA. The court held that physicians have a contractual obligation to honour the appointments they give to patients, even though it is the hospital that schedules those appointments in light of the physicians' availability. The interest of this construction for the patient is that, within the hospital contract, the reasoning of Lapointe would apply again, and the hospital would answer for those through whom it performs its own undertaking. The general rule remains that the relationship with the hospital is extra-contractual, but the relationship with the physician may be either contractual or extra-contractual depending on the circumstances.

Rethinking the Relationship of Subordination

A third line of inquiry questions the premise that a physician can never be a hospital's employee. Professor François Tôth, in "Contrat hospitalier moderne et ressources limitées : conséquences sur la responsabilité civile", observes that by a simple play of rules, a hospital liable for an act under one regime ceases to be liable under the other. Three solutions have been proposed to avoid the obstacle of the relationship of subordination between hospital and physician. Tôth favours the third: an updating of the concept of subordination and a careful re-examination of the mechanisms of control and supervision of medical services in hospitals in light of recent legislative changes.

His argument proceeds from the transformation of the workforce. Recent decades have seen a considerable growth of highly qualified and specialized labour, and the employer's effective control has often become merely symbolic. An engineer in a factory, a manager in a business, or a computer specialist all perform work about which the employer is incapable of giving orders, because the employer's competence stops where the professional's begins. The employer asks the professional, who remains sole master of the act and of the art, to perform highly specialized work for which membership in a professional order or particular knowledge establishes competence a priori. Control can then be exercised only a posteriori, when the employer discovers that the work was badly done and imposes sanctions. Nobody doubts, Tôth argues, that such autonomy and competence leave the relationship of subordination intact in those cases. An examination of the legislative and regulatory provisions concerning the practice of medicine in hospitals reveals, moreover, that medical practice is strongly controlled and supervised. Read in that light, the second holding of Camden-Bourgault would be open to reconsideration.

Case and Article Pointers

Art. 1457 CCQ: the general duty of conduct; the regime that governs the patient-hospital relationship since Camden-Bourgault, and the basis of the hospital's own organizational fault.
Art. 1458 CCQ: contractual liability and the between regimes.
Art. 1463 CCQ: liability of the principal for the fault of an employee in the performance of duties; the provision on which a patient must rely against a hospital under the extra-contractual regime.
Arts. 1004, 1022, 1189, and 1395 CCQ: examples cited by Kouri of contracts imposed by law.
Cinépix Inc. c. J.K. Walkden Ltée, [1980] C.A. 283: contractual liability for the act of a substitute, even an independent contractor.
Lapointe c. Hôpital Le Gardeur, [1989] R.J.Q. 2619 (C.A.), rev'd 1992 CanLII 120 (SCC): the contractual thesis, and the Supreme Court's refusal to rule on it absent fault.
Hôpital de l'Enfant-Jésus c. Camden-Bourgault, [2001] R.J.Q. 832 (C.A.): the extra-contractual regime at the emergency department; the physician is not the hospital's employee.
Goupil c. Centre hospitalier universitaire de Québec, [2001] R.J.Q. 1814 (C.S.): qui agit per alium agit per se has no application outside contract.
Roy c. Mout, 2015 QCCA 69: the extra-contractual framework is well established.
Rizk c. Hôpital du Sacré-Cœur: a fall during a blood draw, analysed under the contractual regime.
Fédération des médecins spécialistes du Québec c. Conseil pour la protection des malades, 2014 QCCA: the physician's contractual obligation to honour appointments scheduled by the hospital.

Practice Checklist

Identify how the patient entered the hospital: emergency department, unconscious arrival, referral by a physician, or a scheduled service such as a laboratory test.
If the patient arrived at the emergency department, apply Camden-Bourgault: the relationship with the hospital is extra-contractual.
Against the hospital under art. 1463 CCQ, establish the three conditions: fault of the employee, relationship of subordination, and fault committed in the performance of duties.
Remember that, under the current case law, the physician is not the hospital's employee; a claim for the physician's fault lies against the physician personally.
Consider whether the hospital committed its own fault under art. 1457 CCQ in the structure or organization of its services.
Where the service was non-urgent (laboratory, accommodation, ancillary services), consider arguing that the relationship is contractual and that qui facit per alium facit per se applies.
Consider whether a hospital contract and a medical contract are superimposed, and identify the debtor of each obligation.
Whichever regime applies, prove the fault of the person who performed the act; without it, as Lapointe shows, no liability of the hospital can arise.

Glossary

Contractual liabilityresponsabilité contractuelle: The duty to honour one's contractual undertakings and to make reparation for the bodily, moral, or material injury caused to the other contracting party by a failure to do so (art. 1458 CCQ).
Employeepréposé: A person subject to the control, direction, and supervision of a principal, whose fault may engage the principal's liability (art. 1463 CCQ).
Extra-contractual liabilityresponsabilité extracontractuelle: The duty to abide by the rules of conduct incumbent on every person according to the circumstances, usage, or law, and to make reparation for injury caused to another by one's fault (art. 1457 CCQ).
Faultfaute: Breach of a pre-existing obligation, whether conventional or legal, that causes injury.
Hospital contractcontrat hospitalier: The contract that, under the contractual thesis, is formed between a conscious patient and the institution that receives them.
Imposed contractcontrat imposé: A contract whose formation is dictated by law, removing the freedom not to contract or to choose one's contracting party.
Liability for the act of anotherresponsabilité pour le fait d'autrui: Liability imposed on a person for injury caused by the fault of someone else, under art. 1463 CCQ or under the contractual maxim qui facit per alium facit per se.
Medical contractcontrat médical: The contract between a patient and a physician, which may coexist with a hospital contract.
Meeting of mindsrencontre des volontés: The exchange of consents that forms a contract; its absence is the basis of the extra-contractual thesis.
Principalcommettant: The person who exercises control over an employee and answers for the employee's fault (art. 1463 CCQ).
Prohibition of optioninterdiction de l'option: Once a contractual relationship exists, neither party may escape the contractual regime in favour of rules that would be more advantageous (art. 1458 CCQ).
Qui facit per alium facit per se: One who acts through another acts oneself; in contractual matters, the debtor who entrusts performance to a third party remains liable to the creditor for that third party's fault.
Relationship of subordinationlien de préposition: The power of control, direction, and supervision that makes one person the employee (préposé) of another.
Superimposed contractscontrats superposés: The coexistence of a hospital contract and a medical contract for the same episode of care, each with its own debtor.

References and Further Reading

Civil Code of Quebec: arts. 1004, 1022, 1189, 1395, 1457, 1458, 1463.
Cinépix Inc. c. J.K. Walkden Ltée, [1980] C.A. 283.
Lapointe c. Hôpital Le Gardeur, [1989] R.J.Q. 2619 (C.A.).
Lapointe c. Hôpital Le Gardeur, 1992 CanLII 120 (SCC).
Hôpital de l'Enfant-Jésus c. Camden-Bourgault, [2001] R.J.Q. 832 (C.A.).
Goupil c. Centre hospitalier universitaire de Québec, [2001] R.J.Q. 1814, 2001 CanLII 24664 (C.S.).
Roy c. Mout, 2015 QCCA 69.
Rizk c. Hôpital du Sacré-Cœur.
Fédération des médecins spécialistes du Québec c. Conseil pour la protection des malades, 2014 QCCA.
Jean-Louis Baudouin, on the conceptual unity of contractual and extra-contractual liability.
Andrée Lajoie, Patrick A. Molinari and Jean-Louis Baudouin, "Le droit aux services de santé : légal ou contractuel?", (1983) 43 R. du B. 675.
Robert P. Kouri, "L'arrêt Hôpital de l'Enfant-Jésus c. Camden-Bourgault et le contrat hospitalier occulté : aventurisme ou évolution?", (2004) 35-1 R.D.U.S. 307.
François Tôth, "Contrat hospitalier moderne et ressources limitées : conséquences sur la responsabilité civile".
Collection de droit 2022-2023, EYB2022CDD95.

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.

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