Author: Erin Jeon, University of Manitoba Law Student
This is part 1 of a two-part series about improving access to justice for people impacted by medical malpractice.Part 1 discusses the numerous access to justice problems regarding medical malpractice. Part 2 discusses a possible solution to these problems in no-fault compensation.
The Canadian healthcare system will be accessed by nearly every Canadian in their lifetime. Most Canadians trust their doctors to care for them, and in the vast majority of cases that trust is not misplaced.[1] However, regardless of intention, doctors are human and will make mistakes–and in the field of medicine, mistakes can have consequences as serious and irreversible as death. Justice dictates that the victims of medical malpractice receive some compensation for the harm they have suffered. However, in cases of malpractice, it is extremely difficult for patients to receive such compensation.
Elaine Gibson estimated that in 2014 only 3.35% of “highly preventable” adverse medical events resulted in the commencement of a legal action.[2] Using the same methodology, I estimated that 2.59% of these “highly preventable” events resulted in the beginning of a legal action in 2022.[3] While a small proportion of those harmed commenced a legal action against their physician, an even smaller number either settled or received a judgment in their favour. Of the 985 resolved medical malpractice cases in Canada in 2022, 638 were dismissed, abandoned, or discontinued; 313 were settled with the plaintiff; and 34 cases were heard. Of the cases heard, 26 resulted in a judgment for the physician and only eight resulted in a judgment for the plaintiff.[4] Therefore, approximately 32.6% of commenced legal actions resulted in compensation for the injured patient in 2022, and 0.84% of patients involved in “highly preventable” adverse medical events were compensated for injuries sustained.[5]
Financial and Temporal Barriers to Medical Malpractice Compensation
There are numerous barriers that victims of medical malpractice face in receiving compensation under the Canadian fault-based system. Cost is one of the major obstacles that patients face. For a case to be economically viable, the settlement or award must be around $250,000 or higher.[6] Therefore, for a patient to be able to obtain a lawyer, they must have suffered significant enough harm. This economic threshold grants no opportunity for “lesser” harms to be compensated under the current fault-based system.[7] If a patient is able to obtain a lawyer, they have to be able to afford the legal costs that come with pursuing a medical malpractice case. Medical malpractice cases are resolved in an average of 38 months in Canada, and often have the longest trial times in the civil justice system.[8] In addition, due to the nature of medical malpractice cases, medical experts–another costly expense–must testify to help the plaintiff establish the standard of care and causal link between the plaintiff’s injury and the defendant’s conduct.[9] These known costs may be compounded by the risk that all plaintiffs face: losing the case and having to pay part of the physician’s legal costs, which can amount to hundreds of thousands of dollars.[10]
Barriers at Trial
If a patient gets to trial, they must overcome the burden of proof–a proven challenge in medical malpractice cases. As is the case in all negligence cases, a standard of care must be established. Physicians are held to “a less rigorous standard of care in negligence law than perhaps any other person: if they can establish that they conformed to standard medical practice, unless the area is fraught with obvious risk, it is not possible to find that their practice was negligent.”[11] A causal link must then be found between the plaintiff’s injury and the defendant’s conduct. Due to the uncertainty and complexity that is inherent in the practice of medicine, it is often incredibly difficult to establish causation.[12] In a negligence claim, the patient plaintiff must prove a hypothetical: but for the physician’s breach of the standard of care, the harm would not have occurred.[13] Expert medical opinions are necessary to prove this hypothetical, but even with their assistance, it can be difficult to determine causation in light of the plaintiff’s already-deficient health condition.[14]
For informed consent negligence claims, the patient plaintiff must prove on a modified objective standard that a reasonable patient would have taken a different course of action had they been adequately informed. These claims are particularly difficult to succeed in because the courts have decided that most reasonable patients trust their doctor’s advice.[15] For instance, in Cruz, the plaintiff was born with a spinal cord injury and brain damage.[16] The physician used the forceps method to deliver the plaintiff, and did not present the option of a C-section to the plaintiff’s mother.[17] The plaintiff’s medical expert said that the patient would “probably”[18] have followed the doctor’s recommendation, while the physician’s medical expert claimed that patients “invariably”[19] follow their doctor’s advice; because the physician in question would have recommended a forceps delivery (which was found to be a reasonable delivery method in the circumstances[20]), the Appeal Court decided that it was “not unreasonable”[21] for the trial judge to find that the plaintiff’s mother would have followed her doctor’s advice.
The Strength of the Canadian Medical Protective Association
All of these barriers are amplified when considering the opponent patients are facing. The Canadian Medical Protective Association (CMPA) represents approximately 95% of physicians in Canada regarding legal matters.[22] Physicians pay yearly fees to the CMPA for their representation.[23] The CMPA is a financial powerhouse: at the end of 2021, it held $6.410 million in assets.[24] The CMPA hires some of the best lawyers in the country, making them an intimidating body to go up against.[25] Furthermore, the CMPA has a group of medical experts that they regularly call upon to give expert opinions in court.[26] Therefore, finding medical experts–a noted challenge for plaintiffs in medical malpractice cases–is simple for physicians represented by the CMPA. Finally, the CMPA covers all legal expenses, awards, and settlements, allowing physicians to defend themselves without fear of financial consequences.[27] There is therefore less incentive for the physician to settle the case, as well as a decrease in any deterrence effect that a fault-based system has.[28]
This is not to pin the access to justice issues surrounding medical malpractice entirely on the CMPA. Physicians, like anyone, deserve to be represented in legal matters. Given the necessity of medicine and the importance of reputation in practicing it, physicians should not have their careers disrupted or ruined by frivolous lawsuits. However, the strength of the CMPA, combined with the cost of medical malpractice litigation and the difficulties with the litigation itself–namely, standard of care and causation–culminate in a mountain that is nearly impossible for potential malpractice plaintiffs to scale.
Medical malpractice is undoubtedly an access to justice issue. Given that the consequences of medical malpractice are often life-altering, victims of malpractice should be able to access compensation without such significant financial and temporal barriers standing in the way. What can be done to alleviate these barriers? Countries such as New Zealand and Denmark have adopted no-fault compensation schemes for medical malpractice. Although these schemes are far from ideal, they may serve to deliver access to justice on a wider scale than the current system Canada has in place.
Part 2 of this series discusses no-fault compensation for medical malpractice in greater depth.
[1] Cruz (Litigation Guardian of) v Robins, 2008 ONCA 53 at paras 11 & 14 [Cruz].
[2] Elaine Gibson, “Is It Time to Adopt a No-Fault Scheme to Compensate Injured Patients?” (2015-2016) 47 Ottawa L Rev 303 at 310-311.
[3] Gibson estimated the proportion of medical malpractice legal actions to possible actions using the number of legal actions commenced in 2014 (866) and the number of “highly preventable” adverse medical events in 2004 (25,830; found by the 2004 Canadian Adverse Events Study). To calculate this proportion for 2022, I used the number of legal actions commenced in 2022 (670) and the same number of “highly preventable” adverse medical events in 2004 (25,830). Because the Canadian Adverse Events Study was conducted several years before Gibson’s article (2014) and this blog post (2024), these proportions should be taken as estimates. G Ross Baker et al, “The Canadian Adverse Events Study: The Incidence of Adverse Events Among Hospital Patients in Canada” (2004) 170:11 CMAJ 1678; Gibson, supra note 2 at 310-311.
[4] Canadian Medical Protective Association, “2022 Annual Report” (2022), online: <cmpa-acpm.ca/en/about/annual-report/2022-cmpa-annual-report>.
[5] These calculations again assume that the numbers from the Canadian Adverse Events Study are representative of contemporary statistics, and should be taken as estimates.
[6] Kairos Anggadol, “Protecting Doctors’ Reputation at What Price? The Canadian Medical Protective Association’s Role” (14 October 2021), online: <canadianlawyermag.com/practice-areas/medical-malpractice/protecting-doctors-reputation-at-what-price-the-canadian-medical-protective-associations-role/360747>.
[7] Ibid.
[8] Gibson, supra note 2 at 332; Erik S Knutsen, “The Medical Malpractice Landscape in Ontario: Facts, Trends and Analysis of Trials and Appeals” (2017) 47:2 Adv Q 131 at 140.
[9] The cost of a medical expert’s opinion can range from $1000-$10,000. Knutsen, supra note 8 at 140-141.
[10] Gibson, supra note 2 at 311; Knutsen, supra note 8 at 140-141.
[11] Gibson, supra note 2 at 311.
[12] Ibid at 311.
[13] Knutsen, supra note 8 at 141.
[14] Ibid at 141.
[15] Ibid at 142; Cruz, supra note 1at paras 11 & 14.
[16] Cruz, supra note 1 at para 2.
[17] Ibid at para 2.
[18] Ibid at para 11.
[19] Ibid at para 11.
[20] Ibid at para 8.
[21] Ibid at para 14.
[22] Gibson, supra note 2 at 312.
[23] Up to 90% of CMPA fees are reimbursed by the government. This reimbursement was first negotiated in the 1980s to address spiking malpractice insurance fees, which were becoming an issue in the United States. While some sources take issue with taxpayers/plaintiffs paying for the physician’s defence in malpractice cases, others argue that the reimbursement should be viewed as a part of the cost of universal healthcare. Anggadol, supra note 6; Habiba Nosheen & Andrew Culbert, “As Fewer Patients Sue Their Doctor, the Rate of Winning Malpractice Suits is Dropping Too”, CBC News (18 April 2019), online: <cbc.ca/news/health/medical-malpractice-doctors-lawsuits-canada-1.4913960>.
[24] Canadian Medical Protective Association, “2021 Financial Performance Full Report” (2021) at 2, online (pdf): <cmpa-acpm.ca/static-assets/pdf/about/annual-report/2021/21-financial-performance-e.pdf>.
[25] Patrick Garon-Sayegh, “Billet de blogue: Medical Malpractice Litigation, Access to Justice and the CMPA” (16 May 2019), online (blog): <chairesante.ca/en/articles/2019/nouveau-billet-de-blogue-de-la-chaire-medical-malpractice-litigation-access-to-justice-and-the-cmpa/>.
[26] Susan McIver & Robin Wyndham, After the Error: Speaking Out About Patient Safety to Save Lives (Toronto: ECW Press, 2013) at 236.
[27] Gibson, supra note 2 at 314.
[28] Ibid at 314.