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Medical Malpractice Cases in Canada Are Dropping

Posted in: Blog, Serious Personal Injury // Written on behalf of Cuming & Gillespie
April 25, 2019

Approximately 70,000 patients a year experience preventable, serious injury as a result of medical treatment in Canada.  According to a study published over a decade ago, it is estimated that as many as 24,000 adults die annually in Canada as a result of preventable “adverse events” in acute-care hospitals.

Despite these alarming figures, an investigation by CBC News reveals that the rate of medical malpractice lawsuits filed by patients in Canada has decreased.  CBC News analyzed 40 years of annual reports filed by the Canadian Medical Protective Association (a non-profit organization that provides legal defence, liability protection, and risk-management education for physicians in Canada).  The research also found that almost half of all lawsuits commenced by patients are dropped before they get to court. 

WHAT IS MEDICAL MALPRACTICE?

Medical malpractice can be defined as an act or omission by a healthcare professional during the treatment of a patient that deviates from accepted standards of practice in the medical community and causes an injury or illness to the patient.

A medical malpractice claim requires the following elements:

  • Duty of Care:  There must be a patient-physician relationship in which a health care professional owed a duty of care to the patient.
  • Standard of Care:  The health care professional fell below the standard of care expected of a reasonable doctor.
  • Foreseeability:  The injuries that the patient suffered were reasonably foreseeable.
  • Causation:  The health care professional’s behaviours were the proximate cause of the injury.
  • Substantial damages:  The patient suffered demonstrable damages.

The following are examples of medical malpractice claims:

  • Not ordering adequate or appropriate diagnostic tests;
  • Failing to warn of significant risks of treatments;
  • Failing to treat a patient;
  • Failing to refer a patient to a specialist;
  • Operating on the wrong body part;
  • Performing unnecessary surgeries;
  • Prescribing wrong medications or the wrong dosage; and
  • Failing to advise of all treatment options.

LIABILITY INSURANCE FOR HEALTH PROFESSIONALS IN CANADA

Canadian doctors are required to obtain medical liability insurance.  Insurance of this nature is obtained through the Canadian Medical Protective Association (“CMPA”).  Membership fees are based upon the type of work a physician practices and where the physician is located.   These premiums are not dependent upon a physician’s record, history of complaints or claims paid. 

Membership fees through the CMPA provide insurance coverage for physicians and a right to representation in medical malpractice lawsuits.  Provincial governments subsidize the system by paying a portion of the fees paid by doctors for the insurance.  Therefore, approximately 75% of the CMPA’s funding comes from taxpayers (through the provinces and territories).  In Ontario, it has been reported that physicians are reimbursed approximately 83% of their membership fees.

Critics of this system argue that because these fees are not based upon a physician’s record, there is little consequence to physicians who are found liable for malpractice, even on several occasions.

Critics of the CMPA also criticize the vigorous defence of medical malpractice suits and sparing no expense on lawyers and medical experts in support of the doctor.  The CMPA is also disparaged for the rejection of reasonable offers to settle claims in an effort to discourage similar lawsuits.

DAMAGES IN MEDICAL MALPRACTICE CASES

In Canada, the Supreme Court of Canada in a trilogy of decisions in 1978 established a limit on liability awards for general non-pecuniary losses (i.e. pain and suffering, loss of amenities and enjoyment of life).  The maximum amount that a victim can sue for non-pecuniary losses in a medical malpractice case is $360,000.  There are exceptions to this rule, but these cases would have to involve truly extreme circumstances. 

There are also limits to the cases that courts will award punitive damages in Canada.  Punitive damages are awarded to punish the offending party (rather than compensate the plaintiff), to deter future wrongdoers and to express outrage for egregious conduct.  They are only awarded in the most extraordinary cases and this is very rare.

However, there are no limits for other categories of damages, such as out-of-pocket expenses, loss of income or loss of earning potential and cost of future care, which can range from the hundreds of thousands to the millions.

MEDICAL MALPRACTICE LAWYERS CAN HELP YOU MAKE THE RIGHT DECISION

Deciding whether to commence a medical malpractice lawsuit is a difficult decision.  It requires weighing the potential costs and financial risks against the potential awards.  It is obviously not a decision that should be made without careful consideration. 

Choosing the right personal injury lawyer is the first step in the difficult process of commencing the medical malpractice lawsuit.  A lawyer who is knowledgeable and has expertise in the field of medical malpractice law will be able to guide you through the complicated, time-consuming, and risky litigation process.

A law firm that specializes in medical malpractice law will be able to contact a team of medical experts to help you present your case and can make a difference in the eventual outcome of your case.  At Cuming & Gillespie Lawyers, we can assemble a team of legal and medical experts to ensure that you put forth the strongest case and receive the compensation you are entitled to.  With over 20 years of experience, the award winning lawyers at Cuming & Gillespie have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide whether you should pursue a claim.  Call us at 403-571-0555 or online today to book a free consultation. 

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