Malpractice system in for major shakeup
‘Simple changes could be transformative’
It’s the only way for patients to seek justice when they’ve been harmed by health-care error, but Canada’s medicalmalpractice system is itself rife with controversy.
Patients complain of a scorched-earth defence approach by doctors, the number of lawsuits filed has been shrinking and the costs for governments that subsidize physicians’ liability coverage have been rising sharply.
A respected former judge, however, is about to shake up the system, putting the final touches on a largely unheralded, governmentcommissioned report with the potential to transform what happens when doctors get sued.
While Stephen Goudge’s closed-door review was requested by Eric Hoskins, the Ontario health minister, his recommendations to overhaul the contentious system could reverberate across the country.
Goudge is best known for his inquiry into wrongdoing by forensic pathologist Dr. Charles Smith, which led to extensive changes in how Ontario investigates child deaths. Lawyers who represent patients in lawsuits against physicians say they hope he has a similar impact on their field.
“In my mind, relatively simple changes could be transformative for our medical system,” said Paul Harte, a Toronto malpractice lawyer.
Justice Goudge was asked to find ways to reduce liability costs and improve the system’s efficiency, “ensuring that patients receive appropriate compensation in a timely manner” and defendants are treated fairly, said Shae Greenfield, a spokesman for Hoskins.
The rest of the country will undoubtedly be paying attention, said Amani Oakley, another Toronto-based malpractice lawyer.
“Every province and every territory is dealing with (similar issues),” she said. “It would not at all surprise me if it was carefully scrutinized elsewhere.”
Officials at the Canadian Medical Protective Association, which provides liability coverage for all doctors in the country, declined to comment on the review.
But the association’s annual report stresses that fee increases have been required for financial stability. Despite having assets of $3.6 billion, its potential liabilities, according to actuarial estimates, are even higher, leaving a $94-million unfunded liability, the report says.
Critics question the expense of the system, the need for that huge war chest — and the results for those hurt by health care.
A landmark 2004 study estimated that 70,000 hospital patients suffer preventable medical errors annually, with thousands of them dying.
Though safety experts say those errors are often systemic and not the fault of one health professional, virtually the only way for patients to seek compensation is through the courts.
Unlike in the U.S., where doctors buy their own liability insurance privately, all physicians here are covered by the non-profit medical protective association.
And all provinces subsidize doctors’ fees to varying degrees under deals negotiated with medical associations. Ontario is expected to pay $335 million to the association in 2017, out of a total $384 million fees charged to its doctors. The province’s share has risen “dramatically,” up from $46 million in 2011, Ontario’s auditor general noted recently.
Most other provincial governments do not report publicly how much they pay, but the auditor general estimated that Saskatchewan and Alberta contribute a similar 85 per cent of the total.
Fees across Canada added up to $656 million in 2015, augmented by $158 million in investment income, according to the protective association’s annual report. But less than a quarter of that sum ends up in the pockets of injured patients.
The association spent $195 million on compensating patients in 2015 through court judgments or settlements, a decrease of $42 million from the year before. Another $170 million went to legal fees and expert witnesses.
Meanwhile, the number of lawsuits against doctors has dropped five per cent over the past decade, even as the ranks of physicians have grown.
Harte said the rising costs of representing doctors — and shrinking number of cases — relates directly to the aggressive tactics followed by lawyers hired by the association, who he says resist settlement and prolong litigation even when negligence is clear-cut.
“It’s well known the CMPA does this scorched-earth defence strategy — fight, fight, fight, no matter how obvious the injury is,” said Oakley.
Harte said it’s time doctors paid some form of a risk premium based on their claims history, as occurs with auto and home insurance. “The doctor who has 25 lawsuits pays the same as one with no suits,” said the lawyer.
And the association’s mandate should be changed from protecting doctors’ professional reputations to efficiently compensating injured patients, Harte argued.
EVERY PROVINCE AND EVERY TERRITORY IS DEALING WITH (SIMILAR ISSUES).