While a declining number of medical malpractice lawsuits may seem, on the surface, to indicate a rising level of care, the reality is less optimistic. As of the 2004 Canadian Adverse Events Study, patients across the country suffered an annual 185,000 adverse events – approximately 70,000 of which may have been preventable – accounting for between 9,250 and 23,750 deaths.
Why, then, aren’t more victims of medical malpractice suing? The primary reason is money. In Canada, doctors are protected by the Canadian Medical Protective Association (CMPA), an Ottawa-based organization that provides legal defence and liability protection to physicians nationwide. The CMPA is an incredibly well-funded organization, harbouring a war chest of $3.2 billion, and are well-known to vigorously defend their clients in court, even in cases where an out of court settlement may be the cheaper solution. They are able to take this aggressive line for a number of reasons:
- Most lawyers are unwilling to fight medical malpractice claims against the CMPA. Because of the expense associated with malpractice suits, medical malpractice lawyers are often forced to finance cases on behalf of their clients. “Trying to convince today’s generation of young lawyers to get into this area where they are going to be bankrolling someone else’s misery at their own cost is a tough sell,” explained Queen’s University law professor Erik Knutsen in a Toronto Star interview.
- To make matters more complicated, in Canada the losing side of a legal dispute must pay some of the legal fees for the winning side. In theory, this regulation is in place to prevent an inundation of frivolous lawsuits. However, in cases where one side has access to exponentially more money than another, it can be used to intimidate the opponent. Victims of medical malpractice, who may already be struggling financially, are unlikely to risk the money they have at their disposal. “It’s a real David-and-Goliath situation,” said Susan McIver, author of After the Error, in an interview with the Toronto Star. “Plaintiffs risk losing their homes and life savings when going up against an organization with deep pockets.”
- The CMPA has far better access to medical professionals who can contribute their opinions to the case, and are better able to pay them.
In short, the CMPA’s financial dominance makes it very difficult for victims of medical malpractice to earn compensation for their injuries. Unfortunately, a significant portion of the CMPA’s money comes directly from Canadians’ pockets. In Ontario, doctor’s pay their own CMPA fees, but are later reimbursed for more than 80 per cent of the cost by the provincial government. In 2014, almost $200 million of taxpayer money was used to subsidize annual CMPA fees, and that number is continually rising. Between 2013/14 and 2014/15 alone, the cost of CMPA fee reimbursements to the province rose 28 per cent.
In order to win a medical malpractice case in Canada, plaintiffs must prove that the medical professionals in question failed to meet the “standard of care” that a reasonable colleague would provide. The cases are complex, costly, and can be emotionally painful. Medical malpractice lawyers must have a unique knowledge of both the Canadian legal and medical systems in order to have a chance at winning the case.
If you or a family member has been injured by a case of medical malpractice, contact the medical malpractice lawyers at Neinstein Personal Injury Lawyers for a free consultation. We are one of the few law firms in Ontario who represent victims of medical malpractice in court.