As medical malpractice lawyers know all too well, the Canadian
Medical Protective Association ("CMPA") has earned its
litigious reputation. Their slogan reads, "protecting the
professional integrity of physicians and promoting safe medical
care in Canada". They profess a duty to protect rather than to
defend. Often, this mandate translates into aggressively fought
litigation culminating with a trial or settlement only on the
courtroom steps. This strategy, along with the CMPA hiring
expensive lawyers to protect their members, makes medical
malpractice litigation a costly endeavour for everyone.
Unlike private insurers who make measured business decisions to
bring cases to conclusion, the CMPA has been known to spend more
money litigating a matter than the case is worth in order to
protect the reputation and integrity of the defendant doctor.
Traditional insurance companies are financed privately, whereas
the CMPA is funded by doctors who derive their income from the
public purse (i.e., the Provinces). The Toronto Star published a
compelling article on September 15, 2015 on this
issue and specifically highlighted the point that plaintiffs who
end up suing for medical malpractice, as taxpayers, are indirectly paying for their doctors to be
defended, given that OHIP subsidizes 81% of the CMPA fees.
According to the article, last year taxpayers paid almost $200
million to subsidize the legal defences of doctors sued civilly or
involved in regulatory claims. This figure is projected to keep
Some suggest that given this taxpayer funding there should be
accountability and transparency on how the CMPA spends its money.
Not surprisingly, the CMPA disagrees. Rather than acknowledging an
aggressive approach to litigation as an explanation for the high
cost of medical malpractice litigation, the CMPA suggests that the
provinces should undertake civil justice reforms to reduce the cost
of lawsuits. In fact, Ontario courts have worked vigorously at
shortening litigation times, have imposed legislation to streamline
lawsuits and have imposed avenues for frivolous claims to be
adjudicated expeditiously, all with the view of unclogging the
court system to improve access to justice. Additionally,
impositions of mandatory mediation or using pretrial conferences
for settlement discussions are aimed at getting parties to make an
effort at early resolution to reduce litigation costs.
One wonders whether any court reform will really make a
financial difference in medical malpractice litigation given the
manner in which these cases are litigated. Perhaps court delays are
not the problem. In vigorously contested litigation, the Ontario
Superior Court has recognized the CMPA's "scorched earthy policy of putting the
plaintiffs to the test of establishing virtually all of their
claims on all issues of damages, and liability".
Concern is raised when one considers whether this attitude or
method of defending physicians is in the public interest. Too
often, plaintiff lawyers have to refuse cases on the basis that the
damages do not meet a high enough threshold to warrant the
inevitable high costs of medical malpractice litigation. Hence, we
are left with frustrated taxpayers wondering where the $200 million
is going and out-of-luck patients who have been wronged by their
doctor and financially unable to pursue their claim, largely
because litigation tactics make it too expensive.
Perhaps taking a different approach in litigating medical
malpractice cases could reduce the cost of litigation for all. This
does not mean the CMPA should pay frivolous claims to save money or
fail to put forward a fair defence for their members.
Doctors deserve to be well defended, just as their patients
deserve good advocates. A different approach, however,
could entail settling before the eve of trial to prevent hundreds
of thousands of dollars being unnecessarily spent by both parties.
Or, if the matter is proceeding to trial, admitting questions of
fact or law to help narrow the issues and shorten the length of the
trial. Failing to do so effectively leaves taxpayers' money
defending cases or aspects of cases that ought to have been
settled. Hopefully, growing public awareness regarding the lack of
transparency and harsh reality for patient plaintiffs will assist
the CMPA in reforming their 'scorched-earth' litigation
tactics to assist in lowering litigation expenditures, to the
benefit of all Ontarians.
Previously published on the Ontario Trial Lawyers Association Blog
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