Canada: Hospitalism in Ontario: Managing the Legal Risks

Last Updated: November 9 2004
Article by Lydia Wakulowsky and Kate Krestow

The crisis of family physicians withdrawing from inpatient care has prompted a growing interest in hospitalism. Originally seen as a "band-aid" solution to the problem of finding responsible physicians for unattached inpatients, the hospitalist model is being adopted across Canada as a way to manage physician behaviour and improve inpatient care. But care must be taken when operating a hospitalist program to effectively manage the associated legal risks.

The Legal Risks

A major concern for hospitalist programs is potential liability when a patient is harmed. Typically, patients will sue everyone involved in their care. With a hospitalist program, a hospital may be exposed to liability for the:

  • acts and omissions of its hospitalists committed in the course of their engagement,
  • failure to select competent hospitalists and monitor their continued competence, and
  • failure to establish systems for the safe operation of the hospitalist program. These risks, however, can be managed through prudent credentialing, contracts and communications.

Managing Risks through Credentialing

Hospitals must ensure that physicians are reasonably qualified to do the work expected of them. Credentialing is an important risk management tool in this regard. When implementing a hospitalist program, hospitals must consider the qualifications required of those hired to deliver the program. As the acuity and complexity of patient problems increase, so must the skills of those caring for hospitalized patients. In addressing these challenges, the first consideration is whether to hire family physicians or internists as hospitalists.

The credentialing process followed for physicians spending most of their time in the office is based on assessments of competence on the quality of the office practice rather than that of the hospital practice. Hospitalists spend all of their time in the hospital. This necessitates a change in the base measure of assessment. Hospitals must identify the core skills or body of knowledge needed to provide inpatient care. This, of course, is easier for organ-based, disease-based and population-based specialties than for site-defined specialties like hospital medicine. Hospitals must consider the unique set of skills and competencies needed of their hospitalists and refine their credentialing processes appropriately.

Managing Risks through Contracts

Written contracts offer another attractive risk management tool for hospitals. Written contracts with hospitalists should:

  • set out their competencies as a representation in the contract, and have misrepresentations considered a breach of the contract
  • clearly evidence the parties’ intentions with respect to the status of the hospitalist, whether employee or independent contractor
  • describe the payment option chosen for the program, including any increases in income and the assignment of OHIP billings

A number of payment options are available to hospitals, including fixed fee for service, fixed fee for service plus hospital top-up, fixed fee for patient plus OHIP billings, set salary (OHIP billings paid to hospital), set daily/ weekly rate plus OHIP billings, set sum divided by MD group, and set hourly rate and patient handover next day.

  • describe the scheduling of the hospitalist

This includes the hours of coverage at the hospital, responsibility for scheduling, hours of work, after hours, weekend, vacation, statutory holiday and CME leave coverage, and the protocol for hand-off of care to the most responsible physician.

  • address patient load

Establishing systems for the safe operation of the hospital requires consideration of the number of patients a hospitalist sees each day and the number of patients admitted each day for treatment by hospitalists. More established hospitalist programs, such as those in B.C., stress the importance of closely monitoring programs, including patient load. Failing to implement policies relating to the patient load of a program may attract liability if a hospitalist is seeing too many patients and failing to provide proper care or maintain appropriate records and follow-up communication.

  • address scope of practice

Surveys show the net cost of hospitalist programs ranging from $70,000 – $1,200,000 and average recoveries from OHIP are 39% of total program costs. Hospitalists are a low income-generating group in a hospital, with their costs difficult to predict because of the nature of the workload and staffing needs. There is also uncertainty of long term funding. Hospitalists could be required to perform services beyond their strictly medical functions to recover some of these costs. Additional services could include administrative, clinical, teaching, research, recruitment, patient safety services and responsibility for running a hospital clinic for unattached patients.

  • include effective termination and identification provisions to protect the hospital from breach.

Managing Risks through Communication

A problem inherent in the hospitalist model is the possibility of information loss during the patient hand-off process between the primary care physician, the hospitalist, any specialist involved in the patient’s care and the patient and their family. Systems must be put in place to promote communication among these parties. Such systems are integral to managing the risks of a hospitalist program.

Hospitals must address whether the physician or the hospital is legally responsible to ensure ongoing medical management of the patient. This issue is key to hospitalist programs, especially during patient discharge. Advice must be given as to when the patient should have further consultation with a family physician.

Where the patient has a family physician, the hospital should communicate with the family physician about ongoing care, and assist in scheduling a post-op visit with the physician. Where the patient does not have a family physician, the hospital should provide some support to the patient to find ongoing care. When necessary, arrangements should be made for a follow-up appointment with the appropriate specialist at the hospital or other health facility. Hospitals may also consider establishing an outpatient clinic for unattached patients staffed by hospitalists. If this is not feasible, hospitals could admit unattached patients and assign a practitioner to monitor their progress until they are no longer at risk.

Enhanced communication, efficient transfer of patient information and availability to respond to questions should also alleviate potential problems. The development of protocols for patients’ treatment plans and follow-up care, including a standardized discharge summary or plan for each patient, is necessary. A hospital could develop the role of a hospitalist coordinator, and this person can be made responsible to ensure appropriate liaison between family physicians, specialists and hospitalists.


No generic hospitalist program applies to all hospitals. Each program will reflect the community the hospital serves and the pool of physicians available. To ensure an effective and risk-managed hospitalist program, hospitals must:

  • assess the required competence of hospitalists,
  • refine their credentialing processes,
  • select competent staff,
  • limit liability through contracts,
  • develop effective policies and protocols, and
  • communicate and stay informed. 

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2004 McMillan Binch LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Lydia Wakulowsky
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions