Medical Malpractice Claims: An Uphill Battle in Canada

Medical Malpractice Claims: An Uphill Battle in Canada

We entrust doctors and health care workers with our health, sometimes our lives, on a daily basis. We have faith that these professionals will undertake the right decisions and actions for us and our families, keeping us from harm. 

Unfortunately, the medical profession is a very complex field, where even the slightest error can have catastrophic consequences. There are thousands of cases every year in Canada – 28,000 according to the Canadian Patient Safety Institute – where medical errors result in death. In fact, patient safety incidents are the third leading cause of death in Canada, behind only cancer and heart disease. 

The recourse for victims of medical malpractice is to bring a claim against the offending party. This system, though, has been tilted in favour of the health professional for many years now in Canada, due to the powerful Canadian Medical Protective Association (CMPA). The non-profit organization provides legal defence for doctors across the country. This battle-tested behemoth wields a war chest of over $4 Billion, and is known for defending its healthcare clients vigorously in court.

The “Scorched Earth” Approach

An Ontario Supreme Court judge once referred to the CMPA’s “scorched earth” policy, relentlessly challenging the plaintiff at every turn, in order to prolong the case. 

Brian A. Horowitz, of Horowitz Injury Law, has seen this up close. “From my experience, the CMPA will go to almost any length financially to defend a  doctor where they believe they have a defensible case,” says Horowitz. “It’s a practical problem because they have an almost unlimited budget. So it’s very important for a plaintiff who’s been wronged by a doctor to have a lawyer represent them who has the resources to fight the case.”

A recent investigation discovered just how much the scales of justice have tilted in Canada over the years: Up until about 1980, the patient won about one in three medical malpractice cases that went to trial; Nowadays, that number is about one in five. 

Medical malpractice can occur in many different ways, though these are some of the most common:

  • Failure to Diagnose
  • Misdiagnosis
  • Surgical Error
  • Medication Error (e.g. prescribing the wrong medication, administering the wrong medication, or administering an incorrect amount of a medication)
Burden of Proof

Medical malpractice cases are also very difficult due to the fact that the plaintiff bears the burden of proof in these areas: 

  1. Has the doctor failed to meet the accepted standard of care of a doctor of similar expertise and experience in these specific circumstances?
  2. “Causation”: Even in cases where negligence is obvious, the patient must prove that the negligence was the actual cause of the harm. 

Because of the power and financial might of the CMPA, and its aggressive defence tactics, lawyers are often averse to taking on smaller medical malpractice suits. 

“This is a big issue,” says Horowitz. “It’s not practical for most law firms in Ontario to take on cases where the value is less than about $200,000.  The cost of running the file and the cost of experts is prohibitive. Especially if the case goes to trial. Many legitimate cases where there’s been negligence can’t proceed because there’s just simply not enough money involved.”

It’s hoped that new rules taking effect in Ontario in 2020 will help on this front, where civil cases of up to $200,000 will now be subject to “simplified procedure”, and those trials will now be limited to five days, and without a jury. 

“There’s certainly going to be room now in the years to come to take on some files that otherwise a firm wouldn’t have, because the cost exposure at trial is now fixed, and at a much smaller amount.”

If you believe that you or a loved one are the victim of medical malpractice, it’s imperative that you contact a personal injury lawyer with extensive expertise, and the means to fight the powerful CMPA. 

Brian A. Horowitz is renowned across the province for his landmark successes in this area, and he and his team can ensure that you get the compensation that you deserve. Call Horowitz Injury Law for a free consultation, at 416-925-4100. 

By |2020-01-24T15:57:14+00:00January 24th, 2020|blogs, Medical Malpractice, Personal Injury Lawyer|Comments Off on Medical Malpractice Claims: An Uphill Battle in Canada