Malpractice cases too slow, too costly, Ontario review finds
Retired judge’s report calls for reform of system that advocates say is stacked against patients
Medical malpractice cases take too long and cost taxpayers too much, according to a report commissioned by the Ontario government.
Areport released Friday, authored by retired justice Stephen Goudge, says it takes close to seven years for cases to wend their way through the courts and almost five years to reach settlements.
“The time these cases take is sufficiently significant that the concerns about delay appeared justified,” Goudge wrote, echoing sentiments expressed by injured patients and their lawyers, and highlighted in a 2015 Star investigation.
For years, victims and their lawyers have raised concerns about the “scorched earth” tactics of the Canadian Medical Protective Association (CMPA), the organization that supplies lawyers and pays legal bills for physicians in medical malpractice lawsuits in exchange for publicly subsidized annual membership fees.
Goudge wrote that total case costs jumped by up to 700 per cent, unadjusted for inflation, between 1990 and 2015.
“As medical liability costs rise, the cost of medical liability protection necessarily rises. This, and concerns about the length of time required for individuals to obtain compensation for injuries due to medical mistakes, suggest that changes to the medical liability aspect of the civil justice system may be needed to ensure the long-term viability of the way medical liability protection is presently provided in Ontario,” states the 65-page Medical Liability Review.
The province began subsidizing CMPA fees in 1987. The arrangement was made during contract negotiations with the Ontario Medical Association. The province has since been on the hook for all fee increases.
The Star investigation showed the cost to taxpayers grew by more than 3,200 per cent by 2014. At that point, taxpayers were paying almost $200 million annually, or 81 per cent of the total fee bill, to subsidize the legal defences of doctors charged with medical negligence, regulatory transgressions and criminal offences.
CLAIRE WILKINSON “The time it takes to settle even the clearest of cases is just too long for innocent patients.” PRESIDENT, ONTARIO TRIAL LAWYERS ASSOCIATION
Medical malpractice lawyers have long argued that the system is weighted against patients. With its $4-billion legal war chest, the CMPA drags out some cases unnecessarily, they say.
“The time it takes to settle even the clearest of cases is just too long for innocent patients. Denied compensation for years, these individuals don’t get the care they need,” said Claire Wilkinson, president of the Ontario Trial Lawyers Association, which represents1,000 personal injury lawyers.
Anne Levac, 72, of Fenelon Falls, was one of a number of patients injured during a 2012 infection outbreak at the now defunct Rothbart Centre for Pain Care in Toronto. She was infected with the potentially deadly Staphylococcus aureus bacteria while getting an epidural steroid injection for back pain.
It left her unable to walk without a cane or walker, unable to control her bladder and bowel, and suffering from ongoing pain.
She has had to undergo five surgeries, the most recent last summer for a blocked ileostomy, an opening in her abdominal wall through which digested food passes into a pouch she wears. She was in hospital for seven weeks.
The doctor who gave Levac the injection had his licence suspended for 10 months by the College of Physicians and Surgeons of Ontario. Her medical malpractice lawsuit against the doctor is ongoing and Levac has not seen a cent in compensation.
“Everything is stacked against you with the law or the way they play the law. We are absolutely nothing. No one cares,” she said. “What frustrates me more than anything is that I am paying for the doctor’s defence as a taxpayer.”
Goudge found no increase in the number of medical malpractice lawsuits. In fact, they are going down relative to the population. But malpractice lawyers say fewer cases are being filed because of the increasingly high costs of suing doctors: “The vigorous defence of medical malpractice cases by the CMPA ensures that it is not economic to take on cases that do not involve the most serious injuries,” Wilkinson said. “Victims with claims less than $250,000 find it hard to get an experienced lawyer.”
Toronto malpractice lawyer Paul Harte said the average case cost has been driven higher, in part, because smaller cases are no longer pursued.
Harte expressed disappointment that Goudge did not examine the cost of defending doctors, estimating that less than a third of government funds provided to the CMPA ends up in the hands of injured patients.
Goudge recommends establishing a government entity to take responsibility for payment of future care costs of injured patients, capping compensation for family members and making changes to the justice system such as setting early fixed trial dates. He advises the government to create an advisory committee made up of experienced judges and plaintiff and defence lawyers to work out the details of his recommendations, monitor their implementation and makesuggestions for improvement.
Goudge also recommended looking to the Healthcare Insurance Reciprocal of Canada (HIROC) for ways to improve the medical malpractice system. HIROC provides insurance coverage to organizations such as hospitals. It bases the amount of money needed for medical liability costs on claims made, not estimates of possible medical mistakes.
Goudge suggests that HIROC does a better job managing legal costs because it pays lawyers via cost agreements for fixed periods of time rather than on a fee-for-service basis. A former Ontario hospital CEO said HIROC fees have increased at a much lower rate than CMPA fees.
“The vigorous defence of medical malpractice cases by the CMPA ensures that it is not economic to take on cases that do not involve the most serious injuries.” CLAIRE WILKINSON PRESIDENT OF THE ONTARIO TRIAL LAWYERS ASSOCIATION