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ABSTRACT
Injuries arising as a result of medical innovation force us to question fundamental assumptions made about private law and, in particular, civil responsibility as we have traditionally envisaged it in the Western world. Challenges to our basic principles of civil liability(1) are becoming particularly obvious in the context of litigation by victims of healthcare-associated infections. Although these infections are hardly new occurrences in our healthcare system, they are growing in importance due to unique, modern factors such as the overpopulation of hospitals, antibiotic prescription patterns, increasingly complex and invasive medical procedures, and an aging population, to name just a few. Causation and the concept of negligence, as justificatory bases for shifting the burden of loss away from the injured party, are two paradigms that must be rethought in this context. This reassessment also leads us to question a more general assumption, namely our focus on individual responsibility based on blameworthy behaviour. On a functional level, we must also question whether the law of civil liability can - where medical accidents are concerned - still efficiently attains its main objectives: compensating victims for loss, holding parties accountable for their wrongful behaviour, and ensuring accidents are prevented in the future.
[1] This talk will be based on both Canadian common law and Quebec civil law. Therefore, the term “civil liability” will be used to refer to tort law and the law of responsabilité civile.
BIOGRAPHY
Professor Lara Khoury is an Associate Professor at the Faculty of Law of McGill University where she has been teaching since 2002. She holds a LL.B. from the University of Sherbrooke. She also completed a doctoral (D.Phil) degree at the University of Oxford, from where she also holds a master's degree (B.C.L.). She teaches and conducts research in the fields of comparative/transsystemic extra-contractual obligations, medical negligence and health law. She is the author of Uncertain Causation in Medical Liability (Prix Minerve 2004; Quebec Bar Foundation Prize 2008). In recent years, her research has focused on legal issues related to healthcare-associated infections, as well as on the impact of biomedical innovations on the transformation of civil liability principles. |
