Changing the Focus in Medical Negligence

Changing the focus in medical negligence:
From protecting negligent doctors to providing effective victim compensation

For more than 25 years, the Government of Ontario has provided hundreds of millions of taxpayer dollars to the Canadian Medical Protective Association (CMPA). The CMPA is the principal provider of defence legal services and indemnity payments for doctors in Canada. Over the last ten years alone, Ontario taxpayers have handed over $1 billion to the CMPA.

Why does the government fund the CMPA?

Medical mistake is an inherent cost of our medical system. In Canada we have entered into a social contract to spread cost of medical negligence amongst all users of the public system. There is an important public interest in providing compensation for victims of medical mistake.

However, the primary focus of the CMPA is not to ensure timely and just compensation of those victims injured by medical mistake. Instead, the CMPA uses public money to defend the reputations of its member doctors by vigorously opposing any and all claims of innocent victims of medical mistake. This drives up the cost of litigation, putting justice out of reach for all but the most wealthy. Most individuals must rely on a handful of lawyers that are prepared to take on and finance these cases. Most lawyers cannot afford the hundreds of thousands of dollars it can sometimes take to fund these cases, even when there is a clear-cut mistake.

The result is a significant reduction in access to justice for innocent victims of a medical mistake: The first national study of patient safety in Canadian hospitals estimated that there are 70,000 preventable medical injuries in Canada annually. Yet despite the prevalence of medical mistakes, only a few hundred individuals ever pursue legal action and eventually receive compensation. From small to life altering mistakes, professional advice is often required. A medical mistake can create a sensitive issue for the patient and therefore, they’re unwilling to come forward. This then lets the mistake go unseen. If you do need to take further action for any mistakes, there are specific lawyers, such as birth injury lawyers, who have special knowledge in that area of expertise.

There is also a complete lack of accountability for how the CMPA uses these public dollars. Once the money is paid to the CMPA, it is out of reach of the Auditor General of Ontario. According to CMPA figures from 2007 to 2011, an average of $166.8 million per year was paid in awards or settlements for medical malpractice claims. But, during that same period, the CMPA paid out an average of $89.4 million a year in legal costs and experts’ fees. As a result, for every dollar paid in compensation, the CMPA paid 53¢ to their lawyers and experts. This does not account for the costs of the plaintiff’s lawyer and experts they were also responsible for paying where they lost or settled a case. The result is that compensation amounts to less than 40 cents on the dollar.

The CMPA should be required to change its focus from protecting physicians’ reputations, to delivering cost-effective compensation to innocent victims of medical mistake. There is no public interest in protecting doctors’ reputations, in spite of mistake or negligence. This change in focus, together with greater accountability, will result in significant cost savings – savings which can be re-invested to provide more front-line services and reduce waiting times.

Further cost to system, borne mostly by the taxpayer, is the currently supported fiction that hospitals are NOT responsible for the mistakes of doctors working out of that hospital. This results in two sets of counsel defending doctors and hospitals separately, thereby often doubling legal expenses without any corresponding benefit to the injured consumer of faulty medical services.

Retired Court of Appeal Justice Goudge has prepared a report after broad consultation, recommending reforms to the health care compensation system. Read his report here.

OTLA is calling on all candidates for provincial office to commit to a complete re-examination of the manner in which we look after the people harmed by our public health care system.