The Buck Stops Where? A Critique of Vicarious Liability in the Medical Malpractice Context

In Canadian tort law, liability is almost always linked to some notion of fault, save for a few well-established exceptions. By far the most common exception is vicarious liability, i.e. the liability of employers for the torts of their employees. In its 1999 ruling in Bazley v. Curry, the Supreme Court of Canada articulated exactly why this kind of faultless liability exists in Canada, and how it is justified. In medical malpractice cases involving teaching hospitals, there are usually three possible defendants to a negligence action: the attending physician, the treating resident, and the hospital. Due to the legal nature of their employment relationship, if the resident is found liable, so too is her employer, the hospital. This liability is regardless of fault. The attending physician, on the other hand, can only be held liable with fault. This paper proposes that imposing vicarious liability on the hospital or any other party in this type of action is inconsistent with the justifications outlined in Bazley v. Curry. Liability in this particular context, it is argued, should be limited to liability with fault. This paper also briefly explores possible reasons why the courts have demonstrated a general preference to have hospitals, rather than attending physicians, pay judgments to injured plaintiffs. It takes notice of a newly emerging non-delegable duty of care owed by hospitals to patients, and further points out the unique public source of funding for malpractice judgments regardless of who is liable