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83 Can. B. Rev. 1 (2004)

handle is hein.journals/canbarev83 and id is 1 raw text is: Vol.83 May 2004 mai No. 1 RESOURCE ALLOCATION AND THE STANDARD OF CARE OF PHYSICIANS Robert-Jean Chenier* Montrial Often referred to as the 'gate keepers' of the health care system, physicians, as the primary providers of medical care, are increasingly required to implement the resource allocation decisions made at the various levels of government and health care administration. To date, courts have been unwilling to alter the standard of care imposed on physicians to reflect systemic realities or to recognize the defense of economic justification in medical liability claims. Instead, they have responded by extending the standard ofcare and, in some cases, requiring that physicians assume heightened obligations to act as advocates for their patients. If as it appears, the prevailing principles ofprofessional and civil liability are not sufficiently flexible to adapt to the consequences of cost- containment measures, alternative mechanisms must be available for physicians to protect themselves from professional liability. In Quebec, the provisions of the Act Respecting Health Care Services and Social Services may serve that purpose. First, the Act recognizes the resource limitations inherent in the health care system and expressly provides health institutions with the latitude to make decisions about how to allocate the resources available. Second, it circumscribes the physician disclosure obligations to the patient with respect to service limitations and institutionalizes the physician & role in the administration of the hospital. Finally, the most recent amendments to the Act, which provide for the * Robert-Jean Ch6nier of McCarthy Ttrault LLP, S.E.N.C.R.L., s.r.1. in Montreal. He wishes to thank Rachel Ravary, articling student, for her significant contribution in preparing this article. THE CANADIAN BAR REVIEW LA REVUE DU BARREAU CANADIEN