Canadian Lawyer

FEATURE Odds improving for plaintiffs in 'David v. Goliath' cases Increased willingness of Canadian Medical Protective Association to settle called 'step in the right direction' by medical malpractice lawyers MANY PERSONAL INJURY cases can fit the "David versus Goliath" analogy, but none more so than those that take on the Canadian Medical Protective Association. "There's a real problem with accessing jus- tice in medical malpractice cases," says Sloan Mandel, a partner at Thomson Rogers, who has been practising in this area for more than 24 years. He estimates he receives 150 to 200 calls a year from people who want to sue their doctors or hospital, but because of the nature of medical malpractice cases — such as the cost of prosecuting them — he conducts "an extensive preliminary examination" on less than 10 of them, and he moves forward with half that amount as potentially viable suits. "That's not to say that, out of 200 people that call, only four have been the victims of medical malpractice — but only four might actually have access to justice," Mandel says. Because the cost of prosecuting a medical malpractice case is so much greater than a more typical personal injury case, "you real- ly get into a Dave and Goliath battle where, if a malpractice case is going to go to trial, it's almost impossible to prosecute it through to completion without spending hundreds of thousands of dollars. Even if you have a via- ble $200,000 case, the cost of prosecuting it is likely to be disproportionate to the amount at issue," Mandel says. Michael Shannon, a partner at Morse Shan- non LLP, says he takes on around 10 well-vet- ted cases a year, but he receives a call or two a week on average. He says it's important to meet face to face with the people who come to the firm for help, even if it's just to explain to them why he can't take on their case. "It may be because there's no liability, or there may be liability but the damages can't justify taking it on a contingency fee, and most people don't want you to take a case unless you can take it on a contingency fee," Shannon says. "We have to be very careful in FOCUS ON MEDICAL MALPRACTICE 26 www.lawtimesnews.com FEATURE

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