No-fault medical model is ‘superior,’ law professor says
Malpractice system could reduce legal costs, expedite compensation for patients
HALIFAX— If Canadians knew millions of their tax dollars were being spent to defend physicians against claims of medical error that have left patients injured or dead, they would call it “perverse,” says Elaine Gibson.
The Dalhousie University law professor, who completed a 58-page review of Canada’s medical liability system in June, draws a firm conclusion: Canada’s medical insurance model — in which taxpayers heavily subsidize the legal costs of physicians facing claims of negligence — requires sweeping reforms.
The best option, she says, is a nofault medical insurance system like those already in place across Scandinavia, in Wales and New Zealand.
In Canada, the little-known Canadian Medical Protection Association (CMPA) covers the legal bills of physicians in exchange for annual membership fees that are largely covered by the provinces.
With a $3.2-billion legal war chest, the CMPA represents a Goliath in the courtroom that tips the scales of justice against victims of medical error, say many medical experts, policy-makers and lawyers interviewed by the Star. The CMPA insurance model fails the public interest on key measures such as compensation, social justice and efficiency, says Gibson, whose review was obtained as part of an ongoing Star investigation.
“I do think a no-fault system would be superior. I think the time is right, right now, for some provinces to take the lead.”
A no-fault model replaces the need for an injured person to go through the courts. Instead, they take their case before an administrative body, similar to the workers’ compensation board. The standards of proof are typically different in this way: Injured patients don’t have to prove a physician is to blame for what happened, only that they were injured by the medical service provided.
“You don’t really need a lawyer anymore under a no-fault model,” says Gibson. “And you don’t need medical experts. Physicians are no longer in an adversarial relationship with the patient. They often assist patients in the process because it isn’t going to result in negative ramifications, because there is no finding of fault.”
For example, in Sweden, 99.9 per cent of claims are resolved without recourse to court even though it is available, according to Gibson’s review. Under a no-fault system, more patients get compensated more quickly, although there is potential for the payouts to be lower, Gibson concluded in her review.
While the initial set-up costs are high, the ongoing administrative costs can be significantly lower.
That’s partly because the CMPA’s unique mandate to protect the reputations of physicians comes with a high legal price tag, says Gibson.
“The CMPA is pretty unique in the world. If their primary end is not to save money for everyone concerned, but to defend the reputation of physicians, then it functions differently than any other area of injury law . . . Governments have had the wake-up call. I don’t think it’s gotten through to the public.”
Dr. Hartley Stern, CEO of the CMPA, defends his organization’s mandate of defending the reputations of its member doctors when it believes injury was not caused by medical negligence. It does, he says, offer compensation when it’s clear the harm was the result of a medical mishap.
“I recognize that as an organization that we take a lot of hits,” he said. “What we believe . . . is that the focus of the civil justice system should be on ensuring fair compensation for plaintiffs who are harmed by negligent medical care. We believe it. It may be that people say we don’t. But I will stand up in front of you and say that it is the truth.”
That process could be made more efficient, he said, including reforms that would address administrative costs and delays in the court system.
“There are things that need to be fixed and it’s worthwhile to try and make an effort to fix them,” he said.
“We don’t quarrel with the notion that a negligently harmed patient, by a physician or anyone else, should be fairly compensated. The question is, how do we find a way to do that in a manner that reduces overall costs but still gives them fair compensation?”
Calls for a no-fault model aren’t new. In 1990, a seminal report by Robert Prichard recommended an optional no-fault scheme for Canadians. Seven years later, Justice Horace Krever conducted a Royal Commission of Inquiry on the Blood System in Canada that also favoured creating a no-fault system. Those calls were never answered. But recent sharp increases in CMPA fees, largely covered out of provincial coffers, have triggered vigorous discussion among politicians and policy makers about reforms, an ongoing Star investigation has found.