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 rising.
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.
This post authored by Barbara MacFarlane & Alexa Turner