A doctor’s responsibilities to her patients are extensive. They cover all actions she might perform, as well as all directions she might give to other members of the medical community where she works, such as nursing staff.

The principal obligations of a doctor are:

• The obligation to make a diagnosis and to offer the care required by the patient’s state of health.
  
  In legal terms we say that a doctor has an obligation of means. That is, she must take any adequate means available to her in order to give a reasonable diagnosis, to adequately treat the illness, and to monitor the patient’s condition.
  
  Because there are several ways to treat an illness, a doctor does not automatically become liable if she chooses one treatment over another when her choice is a known, accepted, and currently used method.
  
  
• The obligation to give her patients conscientious and attentive care.
  
  
• The obligation to inform.
  
  The doctor has to give her patients information related to the following:
  -their state of health;
  -the kind of treatment proposed.
  
  She must, for example, explain the usefulness of the treatment, its essential technical details, how the treatment will proceed, and the main consequences of accepting or refusing to have the treatment.
  
  When different treatment possibilities exist, the doctor must also explain the pros and cons of each choice she offers to the patient.
  
  
• The risks associated with the proposed treatments.
  
  The doctor must explain what the chances of success or failure are if the proposed treatment is used, in light of the patient’s unique circumstances.
  
  In addition, she must make clear the potential negative consequences that the treatment could have. All the same, it would be unthinkable to require a doctor to reveal all of the possible risks of treatment. The law requires that she explain the normal risks--those that are the most likely to occur, or those with the most serious or unusual effects.
  
  The demands of the obligation to inform will vary according to the circumstances. For certain kinds of treatment, the doctor must give more complete and specific information about the risks involved. This is the case for purely experimental treatments and for treatments that are not really therapeutic in nature, such as elective plastic surgery. In these cases, the doctor must reveal all the known risks even if they are rare or very unlikely.
  
  
• The obligation to obtain the patient’s informed and free consent.
  
  The obligation to inform exists in order to give the patient enough information to make a truly informed decision, based on full knowledge about the suggested treatment and care.
  
  
• The obligation to obtain consent is a continuous process.
  
  This is why, as a patient, you have the right to be informed of any new elements related to your health status and to the treatments you are undergoing.
  
  
• The obligation to maintain confidentiality.
  
  Like all other professionals, the doctor has an obligation of confidentiality to her patients. This obligation covers any information given by the patient as part of the doctor-patient relationship, as well as everything that the doctor concludes on her own, whether for scientific reasons or from personal experience.
  
  Professional secrecy belongs to the patient and not to the doctor. Consequently, except for reasons having to do with the health of the patient or those close to him, the doctor cannot tell anyone what the patient has confided in her unless the patient has given up his right to confidentiality or a legal provision allows it.

No. As you know, medicine is not an exact science. It is an area that is constantly evolving. As a result, a doctor is not automatically liable, even if it is proven that her diagnosis was wrong, the treatment she prescribed was inappropriate, or the surgery she conducted was ineffective.

When the court evaluates whether or not a doctor is at fault, it must determine if, in the circumstances, the diagnosis was serious and reasonable. It also considers whether a prudent and diligent doctor, placed in the same circumstances would have come to the same conculusions and would have acted in similar manner.

In order to make a diagnosis within these parameters, the doctor must use methods that are currently accepted, make her evaluation with the appropriate tests, and, when there is doubt, consult a colleague. The doctor must communicate her diagnosis to the patient. In addition, if the diagnosis was incorrect, she must communicate this information to the patient.

When the court evaluates a doctor’s civil liability, it must take a number of factors into account, including:

• The time period when the error was made.
  
  To evaluate the fault of a doctor, the court must ask what methods of treatment were known and used during the era when the alleged mistake occured. Courts must recognize that medicine is constantly evolving and we must avoid judging a situation through the 20/20 lens of hindsight. A doctor cannot be punished for having used a method that was not declared out of date until several years later.
  
  
• The conditions in which the doctor does her work.
  
  The court has to take into account the resources available to the doctor when making her diagnosis. The resources available in a general hospital are different from those that are offered in a specialized health centre.
  
  Courts also have to take note of the urgency of the situation. In general, the court is more inclined to excuse a doctor who has to react in an extreme emergency than one who has ample time in which to make her diagnosis.
  
  
• The level of specialization of the doctor.
  
  A doctor is judged based on her level of specialization. Her behaviour must be compared with that of her peers. If she is a specialist, we must compare her actions with those of another specialist placed in the same circumstances. Similarly, a generalist must be compared with other generalists.

Anyone who has suffered direct damage as a result of the death, whether a parent of the deceased or not, can sue a doctor alleged to have been at fault. The lawsuit must normally be brought within three years following the death.

These people can only claim for personal damage caused by the fault of the doctor. For example, the next of kin can claim for the funeral costs they assumed. If the deceased person supported the needs of his family, his dependents may claim an amount equivalent to the economic loss they will suffer as a result of the death of the patient. They can also be compensated for the pain and suffering caused by the loss of their family member. As well, the heirs can make a claim for any injury suffered by the patient between the fault causing the death and the death itself, if the deceased was not already compensated for it. If the effects of the doctor’s fault develop gradually and death results, the point of departure for the calculation of damages is the moment when the trouble first appeared.