Many legitimate medical malpractice claims are either not litigated or unsuccessfully litigated in Canada due to a power imbalance between physicians and patients throughout the litigation process. In this introductory blog post, we will quantify the scale of this access to justice problem and identify 3 important barriers to justice for medical malpractice victims.
How big is the medical malpractice access to justice gap?
We can evaluate the scale of our current access to justice problem in medical malpractice litigation by contrasting the estimated number of patient safety incidents with the number of successfully resolved legal actions arising from those incidents.
Patient safety incidents in acute and home care settings account for an estimated 28,000 deaths in Canada each year.[1] A patient safety incident is defined as an event or circumstance which resulted, or could have resulted, in unnecessary harm to a patient. This makes medical error the third leading cause of death behind only cancer and heart disease. Medical management in acute care facilities contributes to approximately 138,000 preventable injuries each year.[2] The Canadian Patient Safety Institute and Canadian Institute for Health Information report that 1 out of 18 hospital visits involves preventable harm and there is a death involving a patient safety incident every 13 minutes and 14 seconds.[3]
Despite the prevalence of preventable harm in our healthcare system, the annual number of malpractice claims initiated against physicians in relation to these incidents is consistently below 900. The gap between potential claims and successful resolutions is widened by the relatively low success rate of medical malpractice claims. Outcome reports on the few initiated claims show around 57% are dismissed or discontinued; 36% are settled; 6% result in judgment for the physician; and a mere 1% result in judgment for the patient.[4] There are thus fewer than 324 medical malpractice claims successfully litigated against physicians out of a possible 138,000 legitimate claims in a representative year. Put another way, 0.2% of potential medical malpractice claims lead to compensation for loss suffered by the patient.
What are the main barriers to justice for injured patients?
We contend there are 3 main barriers to justice for patients: (1) a lack of transparency and awareness about medical error; (2) the complexity, cost, and risk associated with malpractice litigation; and (3) difficulty finding counsel due to lawyer scarcity and case selectivity.
1. Lack of Transparency and Awareness
An injured patient will typically have no way of knowing whether a medical error contributed to an adverse event they experienced while in-care. The patient places trust in the skill and expertise of their physician, but physicians do not make a habit of volunteering information about their impactful mistakes. This can be contrasted with claims arising from motor vehicle accidents where the cause of action is readily apparent.
In these circumstances, public awareness of the prevalence of medical error is crucial to identifying potential cases for investigation. Unfortunately, research by Ipsos found Canadians have limited knowledge on the frequency of patient harm in our healthcare system. Only 1/3 of Canadians surveyed ranked patient safety as a top 3 healthcare priority and 10% correctly identified the rate of death attributed to patient safety incidents.[5]
Even if a patient senses a potential mistake—patients do not have easy access to their medical charts, nor the specialized knowledge required to conclusively identify an actionable medical error. Injured patients and their lawyers are thus reliant on independent medical experts to determine whether an actionable error has occurred. This traditionally involves an upfront cost for obtaining the relevant records and retaining a medical expert to review them—a cost many patients cannot afford and law firms may be unwilling to cover for reasons unrelated to the claim’s legitimacy.
2. Complexity, Cost, and Risk
The necessity of expert evidence makes professional negligence litigation more complex and costly for plaintiffs than other forms of injury litigation. This is amplified in the subsegment of medical malpractice litigation by the highly qualified, supported, and effective counsel representing physicians through the Canadian Medical Protective Association (“CMPA”).
The CMPA is a non-profit, mutual defence association of physicians. It underwrites and centrally coordinates all physician malpractice defence in Canada. The CMPA is not an insurance company. They endeavour to protect the professional integrity of physicians. As such, the CMPA and its provincial counsel vigorously defend every action that is in any way defensible, irrespective of short-term economic expediency. To protect physicians and avoid setting precedents, the CMPA can spend more defending a claim than it would take to settle. As described by one malpractice lawyer: “if they have a $50,000 claim, they can and will spend $250,000 to defend it.”[6]
Due in part to the vigorous defence afforded physicians, the average duration for cases concluded by settlement is 5-years and the average duration for cases concluded by trial is almost 7-years in Ontario.[7] These factors can make medical malpractice claims prohibitively expensive to prosecute with associated costs typically ranging from $50,000 to $200,000.[8]
The notoriously staunch defence approach can enable defendants to exploit the limited medical knowledge, disbursement funding, and risk tolerance of plaintiffs and their counsel. This is reflected in the low success rate of 37% for malpractice claims against a physician.
3. Lawyer Scarcity and Case Selectivity
The cost and risk associated with medical malpractice litigation has a chilling effect on claims due to lawyer scarcity and case selectivity.
In response to the difficulties faced by medical malpractice plaintiffs, a significant number of personal injury law firms are hesitant or unwilling to take on medical malpractice cases and the firms continuing to practice plaintiff-side medical malpractice are becoming increasingly selective in the cases they accept.
Many potential plaintiffs with legitimate claims are unable to find competent representation as a result. For instance, lawyers approached about representation for a low-value medical malpractice claim are typically unwilling to offer a contingency fee agreement because the potential payout is insufficient to justify the time and cost of pursuing the claim. Most prospective plaintiffs are unable to fund a medical malpractice case without a lawyer willing to represent them under a contingency fee agreement due to expenses and limitations associated with their injury as well as the high average cost of such claims. As a result, injured patients with claims under $250,000 are often forced to self-represent or abandon their claim.
How can MedCounsel help?
MedCounsel Inc. is committed to leveling the playing field in medical malpractice litigation.
We have developed a suite of medical expert and advisory services to alleviate the access to justice barriers currently preventing individuals and lawyers from effectively identifying and resolving medical malpractice claims.
MedCounsel's case validation service endeavours to enhance transparency and public awareness of medical errors by delivering a cost-effective tool for law firms to assess cases and make informed decisions at the case evaluation stage. Our expert witness service leverages historic litigation data to match clients with effective expert witnesses willing to produce defensible opinions critical of their colleagues. We also offer plaintiff counsel access to our network of expert consultants to help them navigate the subject matter complexity and risk associated with medical malpractice litigation. Lastly, MedCounsel's subscription service offers law firm clients unlimited access to our complete suite of services enabling them to serve medical malpractice plaintiffs in an economically viable and effective manner.
To learn more about MedCounsel's expert services, give us a call at (647) 285-3063.
References
[1] RiskAnalytica. The Case for Investing in Patient Safety in Canada. August 2017. Accessible at Patient Safety in Canada Baseline Report (patientsafetyinstitute.ca)
[2] G. Ross Baker, Peter G. Norton, et al. The Canadian Adverse Events Study: the incidence of adverse events among hospital patients in Canada. CMAJ May 2004, 170 (11) 1678-1686. Accessible at The Canadian Adverse Events Study: the incidence of adverse events among hospital patients in Canada | CMAJ
[3] Canadian Institute for Health Information, Canadian Patient Safety Institute. Measuring Patient Harm in Canadian Hospitals. What can be done to improve patient safety? Authored by Chan B, Cochrane D. Ottawa, ON: CIHI; 2016. Accessible at Measuring Patient Harm in Canadian Hospitals (cihi.ca)
[4] CMPA. 2019 Annual Report. Accessible at CMPA - 2019 Annual Report (cmpa-acpm.ca).
[5] 2018 Ipsos Public Affairs Patient Safety Survey. Accessible at Awareness of the Patient Safety Crisis in Canada (patientsafetyinstitute.ca).
[6] Tom Blackwell; National Post. Doctors' association accused of using aggressive ‘scorched earth’ approach to defending malpractice suits. 2013. Accessible at Doctors' association accused of ‘scorched earth’ approach | National Post
[7] Hon. Stephen Goudge, Q.C. Report to Ontario Ministry of Health Re: Medical Liability Review. 2017. Accessible at Report to Ontario Ministry of Health and Long Term Care - Re: Medical Liability
[8] Lindsay and Paul McGivern. The Financial Burden of Medical Malpractice Lawsuits. The Verdict; Issue 155. 2018. Accessible at Issue155-Winter2018-Financial-Burden-Medical-Malpractice
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