Canadian Lawyer

October 2019

The most widely read magazine for Canadian lawyers

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FEATURE 24 www.lawtimesnews.com FOCUS ON MEDICAL MALPRACTICE Does the medical malpractice liability model need fixing? Canada's system is based on tort law and causation, individual rather than enterprise IT'S BEEN more than a year since Justice Stephen Goudge released his report to Ontario's Ministry of Health and Long-Term Care resulting from his Medical Liability Review, making recommendations aimed at addressing rising damages in medical PLAINTIFFS' ODDS OF WINNING SUITS ARE POOR liability cases and improving the efficiency and timeliness of the medical liability system. T hese recommendations included establishing statutory criteria for future care plans; efficiencies in the cost of future care services and periodic payments to plaintiffs; increased investment in independent supported living environments; and improvements to the discount rate. They also included procedural reforms such as the enhanced use of case management techniques, specialized judges and early fixed trial dates, in order to improve the efficiency of the system. Although Goudge's mandate did not extend to considering "enterprise liability," i.e., holding the hospital liable rather than the responsible individual health-care provider, some plaintiff-side lawyers believe the system needs to change. Currently, a plaintiff will launch a lawsuit resulting from an "adverse event" against a doctor and According to the book After the Error: Speaking Out About Patient Safety to Save Lives (2013), the chances of a patient winning a medical malpractice lawsuit against a doctor in Canada are slim. Authors Susan McIver and Robin Wyndham found that errors contribute to between 38,000 and 43,000 deaths in Canada each year, and many more individuals suffer serious harm. Yet, from 2005 to 2010, only 4,524 lawsuits were filed against Canadian doctors, and, during that period, 3,089 claims were dismissed or abandoned.

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