Currently, malpractice lawsuits are the usual means to resolve allegations of medical errors or mistakes. This involves hiring a lawyer and commencing an action in court. The suit may name the doctors, the nurses and the hospital independently as defendants, or all of them. The defendants will all be represented by separate lawyers. The doctors through their association (discussed in detail below), and the hospital and nurses through their insurance policies. Resources, if needed, will not be an issue for any of the defendants. The ongoing litigation cost to the plaintiffs will likely be borne by their lawyers, although that is not the case with every firm. However, the growing bill and the risk of losing and paying costs will remain a concern for the injured plaintiff(s) and their families. The suit may be settled with or without mediation but if not, a trial is necessary to determine the result. Losing at trial as a plaintiff means paying a lawyer without a return and possibly having to pay the defendants’ costs, which can have a significant financial impact.

The Plaintiff’s Burden

The vast majority of legal actions commenced against health professionals are grounded in whole, or in part, on the law of negligence. The tort of negligence requires a plaintiff to allege and prove four elements:

  • a duty of care,
  • a breach of the standard of care,
  • injury caused by the breach, and
  • damages suffered as a result of the injury.

The battleground can be any or all of these elements but more often the main issues are whether the standard of care has been breached and/or causation – did the breach cause the injury. These issues are vigorously defended, especially when there is a reasonable chance of success,  even where the cost of defending exceeds the cost of a settlement. That approach leads to risk for the plaintiff’s lawyers as well, who often have to fund the litigation and risk not getting paid. This greatly narrows the number of firms with the resources and skills to handle such cases. S

This dynamic leads to the statistic that only ten percent of malpractice cases actually reach the trial stage. Of those, only about two to three percent result in successful verdicts for the plaintiff(s). About forty percent of malpractice cases are settled before trial. That suggests that about fifty-eight percent of such cases either fail from abandonment or defeat.

The Canadian Medical Protective Association

The doctors’ association mentioned above is known as the Canadian Medical Protective Association, or the CMPA, a non-profit mutual defence organization that offers advice and legal representation to most of Canada’s physicians.

The CMPA recently announced the need to increase membership fees due to the rising cost of settlements, judgments,  legal costs, and a five-year push to eliminate a negative funding position. Ontario alone accounts for a $53,000,000 million shortfall and the rest of the country, except Quebec, has a further $111,000,000 deficit. Quebec is the only province to break even. The CMPA fees are assessed based on location and specialty. The riskier the specialty, the higher the fee. As an example, obstetricians (baby doctors) will be assessed a much higher fee than say, a family doctor or a radiologist. This is due to the higher risk for costly medical trauma to result from birth injuries. These fees are paid largely by the provincial governments for the doctors in their province. All of the fees (public money) are passed on to the CMPA to use in their various endeavours, including the defence of physicians against malpractice accusations.

The No-Fault Position

These fees, this public money, is ground zero for advocates of a no-fault malpractice regime. The usual argument is that the CMPA is using public money to resist the claims of members of that same public. This irony is further strengthened by the suggestion that the CMPA is far too aggressive in its approach. The question being asked is, should this money instead be spent to compensate claimants through a no-fault regime?

It is argued that one clear benefit of a no-fault regime is cost-effectiveness.  This is based on a comparison of the percentage of monies spent on litigation as opposed to compensation. In Canada, more than 50 percent of the fees paid to the CMPA are spent on litigation rather than compensation, compared to much smaller percentages in countries that employ no-fault regimes.

A further criticism is that some advocates feel the public often gives up or never makes a claim because of the difficulties and risks mentioned above. In addition, because doctors are not required to pay the fees for their protection if sued, some feel that this may mean less accountability.

The next problem is the length of time the litigation system takes to resolve cases. This may take up to ten years before, and if, there is a recovery. This is not easy for either the plaintiff(s) or the defendants.

The Argument for the Status Quo

Communities need doctors. Doctors need to make a living. In Canada, their revenue is regulated and controlled by the government.  If the fees for coverage are paid solely by the doctors, that amounts to a significant reduction in profitability, especially for the much needed high-risk specialties. Having them present is a benefit to the public and without government support, they may move to greener pastures.

Secondly, although a no-fault regime might be more “efficient” it certainly will not be as generous to plaintiffs as a successful lawsuit. Such a system inevitably leads to budget cuts and administrative rewards. Further, in a completely no-fault system, the service of nuisance and other non-meritorious claims would further burden the situation.

Both the current system of civil litigation and a potential no-fault regime hold positives and negatives for both sides in a malpractice claim. While the current system can be costly and time-consuming, a no-fault regime hold the potential for smaller damages for claimants. This issue will no doubt continue to be debated for some time. We will keep watch on this topic and provide any updates as needed.

At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234 to schedule a consultation.


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