Lawsuit or civil claim
Except in the cases of exclusion listed in Appendix II, in any lawsuit or civil claim against a resident for an act, deed or omission committed in the performance of his duties, the establishment undertakes to intervene on the resident’s behalf and pay, in the stead of the resident, any damages, in principal, interests and costs for which the resident shall be held liable.
This commitment shall also apply to any subsidiary remedy or action in warranty instituted against a resident for an act, deed or omission committed in the performance of his duties.
Moreover, the establishment renounces, under any circumstances, its right to take action against the resident on account of its obligation to pay the indemnity in the stead of the resident.
Interpretation
In the event of prosecution, you are insured by the establishment via the collective agreement for any act, deed or omission committed in the performance of your duties as a resident, even if the prosecution takes place once your residency has been completed.
Additional malpractice insurance not necessary
You do not have to take out additional malpractice insurance within the context of your postgraduate education, or retroactive malpractice insurance once you begin your autonomous practice. You are automatically covered, fully and without charge, under Article 29 of your collective agreement, during and following your residency for acts performed during your residency.
If legal action is taken against you, you must notify the establishment concerned, which can designate legal counsel to represent you.
You must disclose all relevant information about the case in dispute to the establishment, and you must cooperate with the establishment in its investigation, which will often be conducted by a claims adjuster. It is, however, preferable to be discreet with your colleagues concerning the legal action. Nor is it advisable to discuss it with other residents or the staff physicians involved. Note that the interests of staff physicians being prosecuted may be different from yours, as they will be represented by different attorneys since they are insured by a personal insurer, whereas the establishment and the establishment’s health professionals, including the resident, will normally be represented by attorneys mandated by the DARSSS. Also, barring a serious error on your part, your supervising staff physicians remain responsible for the acts you perform under their supervision, so they might have to be held to account in that regard, and that could mean you have opposing interests. So it is recommended that you let these staff physicians’ attorneys and those of the establishment who are defending you establish whether it is helpful to work together on a common defence. Avoid taking any initiative in these situations, and refer to your representatives.
Make sure you are fully familiar with the facts leading to the prosecution. You might have to describe and comment on the medical acts performed by you, the other residents, staff physicians, or any other members of the establishment’s staff. We advise you, where applicable, to put down in writing everything you remember about the case, since your testimony, if required, could be given several years after the care episode took place. To help you, you may ask for access to the files on which you acted.
Establishment’s obligations
The establishment has to pay for any ruling handed down against a resident. If the establishment were to decide not to pay for the ruling, the resident would be entitled to take legal action against it to collect the amount due.
The third paragraph of Article 29.01 clearly states that the establishment renounces its right to take action against the resident for any ruling against it arising from an error committed by the resident while in its employ.
Moonlighting/locums
If, after taking the necessary steps, you are in a position to perform moonlighting or locums with a regular permit, note that you are not covered by the malpractice insurance as described in Article 29. You must therefore take out malpractice insurance via a third party, such as the Canadian Medical Protective Association (CMPA).
Coverage restricted to duties associated with residency
If you do not have a regular permit and perform medical acts outside your residency, you are not covered by the collective agreement’s malpractice insurance. Be careful, then, with any acts performed as part of activities outside your residency (e.g., volunteering or humanitarian work, or additional paid call duty).
Administrative complaint to the medical examiner or reporting to the Collège
If you are the subject of an administrative complaint to your establishment’s medical examiner or reporting to the Collège, we advise you to get in touch with the Federation for advice.
Lawyer's fees
n the event legal action is taken against the resident personally, and the establishment, after being summoned by registered mail to intervene in his defence, refuses or neglects to do so or refrains from doing so, the establishment shall be required to pay the fees and expenses of the lawyer whose services are retained by the resident to proceed in warranty.
This provision may not be interpreted as negating the insurance coverage stipulated in this article.
Interpretation
The establishment has to provide for your defence in the event of prosecution. If it should refuse to do so, you could claim reimbursement from it of the costs of your defence.
Establishment definition
The establishment contemplated in this article shall be the establishment which pays the resident.
Duration of liability insurance
Throughout the rotation covered by his certificate of employment, the resident shall also be insured for acts, deeds or omissions committed in the performance of his duties at the residence of a patient he has been required to visit in conjunction with his rotation, or in an establishment other than that specified in Article 29.03.
Interpretation
Note that you are also insured while you are at a patient’s home and when you perform treatment in an ambulance within the framework of your residency, since those sites are accredited by the Collège.
The establishment may secure civil and professional liability (malpractice) insurance coverage with a third insurer or through the Health and Social Services System Damages Compensation Plan (Régime d’indemnisation de dommages du reseau de la Santé et des Services sociaux) managed by the SigmaSanté Health and Social Services System Insurance Branch (Direction des assurances du réseau de la santé et des services sociaux (DARSSS)).
Resident's responsabilities
The resident shall comport himself in respect of his establishment as an Insured vis-à-vis his Insurer, notably by acting in good faith, co-operating and reporting incidents or claims within the prescribed deadlines. He shall neither admit his liability nor compromise the establishment’s intended defence against the claim.
Interpretation
You must disclose all relevant information about the case in dispute to the establishment as soon as possible, and cooperate in the establishment’s investigation. We would stress that your staff physicians are not, for the purposes of application of Article 29 of the Agreement, considered representatives of the employer, since their interests may be opposed both to the establishment’s and to yours.
Resident’s refusal to comply with his obligation
Failure to comply with these obligations may lead to denial of coverage and indemnity. The resident shall not, however, be penalized for failing to give the above-mentioned notice within the prescribed deadline if the establishment is not compromised thereby.
Lawsuit after residency
Residents no longer in the employ of the establishment shall nevertheless continue to be protected against any future claim with respect to acts or omissions committed during residency while employed by the establishment.
Interpretation
When you start out in autonomous practice, you are not required to take out retroactive malpractice insurance to cover medical acts performed during residency, because you retain the malpractice insurance coverage provided for in the collective agreement, until the expiry of the limitation periods.
If, however, you are the subject of an administrative complaint to your establishment’s medical examiner or reporting to the Collège for acts performed during your residency, the malpractice insurance coverage in Article 29 does not apply.
Location of coverage
The malpractice insurance provided for in this article shall apply worldwide, except where no insurer can provide guarantees as a result of sanctions, prohibitions or restrictions in connection with a statute or regulation of the Government of Canada concerning economic, trade or political sanctions.
In the event the Health and Social Services System Insurance Branch (DARSSS) is unable to obtain insurance coverage applicable to a country other than Canada, the Minister shall inform the Federation in writing, as early as possible, of the limitations inherent in the malpractice insurance coverage outside Canada.
The medical resident shall declare his rotation outside Canada to the DARSSS, and this declaration shall include the documents and information requested by the DARSSS.
Interpretation
Rotations outside Quebec that have been duly accepted will be subject to the malpractice insurance coverage offered in Article 29. This insurance covers medical residents worldwide, unless coverage is impossible in that location for geopolitical reasons.
When your rotation is approved by your medical faculty and the Collège, you must send the DARSSS a copy of your training card and the “Request for a rotation in a non accredited site” form, duly signed by the competent authorities. Upon receiving this information, the DARSSS will issue an “Attestation of insurance coverage.”
Everything may be sent to faq@darsss.ca. If, however, you would like further information, you may also call the DARSSS at 514 282-4254.
For information on how to have your rotation credited, please refer to Article 13.08.
Make sure you have proof of malpractice insurance before performing any medical acts outside Quebe