Health Care Reform: Can Tort Law Meet the Challenge

Abstract

This article discusses the legal implications of the current trend toward cost containment and restructuring in the Canadian health care system. It examines the remedies available to patients who have been negatively affected by cost containment decisions. Because physicians have ultimate control over the allocation of medical resources, doctors will likely be the primary defendants in malpractice litigation when expensive treatment or medical procedures are withheld from the patient for cost containment reasons. The various factors which are relevant to the success of these types of actions are examined, including a consideration of concepts such as the "locality rule" and "medical custom". The article then discusses whether hospitals and other third party decision makers are more appropriate defendants in cost containment litigation, and whether they could be found liable for their decisions. The author concludes that tort law may be, at least in the short term, a viable mechanism for patients who wish to obtain compensation for injuries that result from health care which is substandard due to cost containment strategies.