Every day in Canadian hospitals, birthing centres and operating rooms, registered nurses provide perinatal care, including assistance at delivery. Midwifery is becoming a regulated health profession across Canada, so nurses attend at deliveries conducted by midwives in health care facilities but perhaps also in a patient’s home. With a greater variety of both obstetrical practitioners and venues of care delivery, planning is required for optimal patient care and to ensure the right types and source of legal defence funding in case of a civil lawsuit in negligence.

To date, governments have borne the cost of obstetrical care, including funding of professional liability protection for doctors and midwives to ensure that successful plaintiffs can receive compensation, either by way of settlement or damages. The same rationale should ensure that nurses involved in deliveries have similar protection, irrespective of which profession they assist at delivery.

This is unlikely to be an issue when nurses assist at deliveries in their accustomed places of employment because of their employment status but it must be squarely addressed when the nurse is employed by a smaller or newer type of entity, or is purported to be an independent contractor.

When a nurse is employed by a smaller or newer type of entity, such as a midwifery practice or a maternity clinic, the employer’s legal liabilities, both direct and vicarious, are the same as they are for a larger institution. Insurance for these liabilities is important. The professional liability protection or insurance available to professional employers by virtue of their membership in a professional organization is generally restricted to the defence of matters related to that individual professional’s own health services rather than business liabilities. There is a risk that professionals who employ others may not be aware of the need for additional insurance to cover their legal responsibility for their employees.

If a nurse is truly an independent contractor when assisting at deliveries, and not under another person’s direction and control, professional liability insurance should be purchased by the nurse. The question is who bears the cost. Should it be borne by the individual nurse when no other professional doing such work ultimately pays for their own liability protection? This hardly seems fair. Consequently, it is appropriate that these nurses be funded for liability insurance from the same source as the other obstetric practitioners. Provincial and territorial governments should pay for insurance funding for nurses providing obstetric care as independent contractors and for vicarious liability coverage for the midwives (and physicians) who employ nurses to assist at delivery.

The practice of obstetrics requires risk management planning, both clinical and financial, for when things go wrong. Such planning is possible and highly recommended to ensure that both patients and health care providers are adequately protected.

September 2008