Canadian Lawyer

www.lawtimesnews.com 27 the cases we vet because we can go bankrupt very quickly — if you take two or three bad cases, the next thing you know you're facing bankruptcy. You've got to be very careful on these cases." The Canadian Medical Protective Associ- ation supplies and pays for the lawyers that defend the doctors in medical malpractice lawsuits and funds any patient compen- sation. In its most recent annual report, it says the CMPA has paid out $260 million in compensation to patients proven to be in- jured through negligence, and the actuarial estimate for the provision for all accumulat- ed outstanding claims was $3.8 million. It lists resolved legal actions, with eight decided in favour of the plaintiff, 53 in favour of the physician, settlement achieved in 276 of the cases and 441 cases fell under the heading "dismissed/discontinued/abandoned." Darryl Cruz, a partner at McCarthy Tétrault LLP, who argues cases for the CMPA, says the statistics speak for themselves — medical cas- es will settle if there's a good reason to do so, and they settle a lot. "The CMPA pays out more money than any other litigant in Canada a year on settlements because of the number of claims against doc- tors," he says. The association has more than 100,000 members — more than 40,000 of them in Ontario — and the doctors pay thousands of dollars in annual fees. It has also been funded by taxpayer money since 1987, a fact that has been criticized by lawyers and the public alike over the years. Shannon notes that when an entity has bil- lions of dollars, compared to an injured per- son who doesn't have anywhere near those resources, it can afford to lose. "The CMPA does take some hard lines and, sometimes, you're not sure if it's a particular lawyer or the law firm that's taking it, because some firms seem to be a bit more reasonable to deal with than others," he says. Cruz says there's been no change to the way the CMPA — and the lawyers who do the work — approach settlements. "The approach has always been that if a case is indefensible and needs to be settled, we try to settle it and we try to settle it as early as we can," he says, noting that the number of settlements over the years has been stable. Mandel says he had a few cases in 2019, however, that settled — a couple even before discoveries — which he calls a step in the right direction. "It's something I've certainly seen more of in my last five years than my first five," he says. "Whether that's because there's been a change in perspective at the CMPA or wheth- er my filter is so much more strict or whether these cases were just so indefensible objec- tively, I can't tell you. But I was pleased that there were cases involving medical malprac- tice that were capable of resolution before discovery — it's just that they are too few and far between." Shannon has also identified a trend of more openness to settlement, which he also attri- butes partially to the fact that cases are vetted extensively and only those where the lawyers are very confident in the strength of the case are taken on. "My general feeling is they are improving — they are prepared to settle cases. They don't give them away, they're tough on the damages, but they are more prepared to settle." He also points to an increase in public at- tention to things such as taxpayer money go- ing to the CMPA and increased costs for med- ical malpractice suits. "These things are putting pressure on the CMPA and the government to have them deal with these cases as opposed to having a scorched earth policy like they used to," he says. Cruz argues that with so many files out there, "if you're sitting in one place, it might seem like there are more settlements than in the past, but I don't think that's true on a mac- ro level." "To me, there have been no major changes in settlement discussions between plaintiffs and defendants in this area," he says. There has been acknowledgement of and discussion about some of the issues unique to medical malpractice cases, including govern- ment inquiries such as the "Report to Ontario Ministry of Health and Long Term Care Re: Medical Liability Review," conducted by Jus- tice Stephen Goudge. One way Mandel can think of to address the high cost of medical malpractice litigation is for the CMPA to be a more active participant in the process. Unlike motor vehicle accident cases or slip and fall cases, decision-makers from the CMPA are usually only represented by their lawyers at pretrials or mediations, processes designed to help streamline cases and make them more cost effective — and even achieve settlement in many circumstances. "What happens is the patient's message is communicated either directly or by the pa- tient's lawyer to a defence lawyer, who in turn communicates that message to an adjustor or the CMPA claims examiner, who in turn then communicates that message to a committee," Mandel explains. "Sometimes, important sub- tleties are lost in a game of broken telephone." He says that, even when there's agreement among counsel, it can take months to get a yes or no to the settlement of a claim — or even the settlement of an issue in a claim — and that process in and of itself can often cause inefficiency, waste and added cost. "There's a real problem with accessing justice in medical malpractice cases." Sloan Mandel, Thomson Rogers

• Cover