Canadian Lawyer

28 www.canadianlawyermag.com LEGAL REPORT MEDICAL MALPRACTICE Protecting doctors' reputation at what price? Medical malpractice lawyers offer varying views about whether the Canadian Medical Protective Association has too much power to defend physicians, writes Zena Olijnyk MALPRACTICE LAWYER Paul Harte says in a typical year, he gets about 1,000 calls from potential clients who want his firm to take on their case after they feel their physi- cian treated them negligently. Harte might take on only about 25 of those cases, based on his assessment of how much it would take to litigate the case, whether it is winnable and what the award could be. The reaction from those who have their cases turned down, he says, is something along the lines of "are you kidding me? The doctor made a mistake, and you're telling me you can't help me — how can this be possible?" It's a difficult conversation to have, Harte admits, and certainly embitters these clients against the entire medical service. And the reason for this, Harte says, is at least partly because of a powerful non-profit organization, the Canadian Medical Protective Association, with vast funds (about $5 billion in assets) at its disposal, most of it linked to government sources. The money is used to settle cases, pay awards, and defend health professionals accused of negligence. While doctors pay dues to be members of the CMPA, provinces pay the physicians back; in some cases, up to 90 per cent, less a small fee. Harte says this situation leaves "zero incentive" for the CMPA to reduce costs and be more efficient in protecting doctors, leading to a "scorched-earth" strategy. An Ontario Superior Court judge also used the same analogy as Harte when he commented in a 2008 ruling, Frazer v. Haukioja, that the CMPA-funded lawyers in a suit against an emergency doctor had pursued a "scorched-earth policy." In the ruling, the judge wrote that the defence put the plaintiffs to the test of establishing virtually all of their claims on all issues of damages and liability, "and making the trial — at 20 days — needlessly long." The patient was ultimately successful, though, with an award of $1.9 million, as well as plaintiff fees and disbursement costs of almost $930,000. The ability of the CMPA to vigorously defend doctors accused of malpractice means the threshold for taking on a case is high, says Harte, who worked on the defence side for the association before becoming a medical malpractice plaintiff lawyer. "It is just not always economically viable to take on a doctor. It also creates a situation where the number of suits brought against doctors is lower than what it could be, and those cases that are litigated arguably produce better results for defendant doctors." While the threshold varies from lawyer to lawyer, Harte says somewhere around $250,000 is a typical settlement or award amount that makes a case worth taking on. An example of one "economically unvi- able" case that Harte turned down involved a 22-year-old waiter with a benign tumour in his rib. After the operation, a problem occurred, allegedly because of a medical error, and the man had to have another operation. However, "even though it's a painful surgery, and the fellow had to take more time off, maybe the case is worth $20,000," Harte says. Here is a case "where I think an error was clearly made," he says, but he turned it down because the cost of litigating would far outweigh the award, given the CMPA's defence-of-doctors mandate. Harte says that because of how the CMPA works, there has been a steady reduction in legal actions. Over the past five years, the number of new legal actions has dropped every year. In 2016 there were 891 new legal actions which went down to 732 in 2020. In 2016, there were 839 resolved legal actions, of which 495 were dismissed, discontinued or abandoned and 290 were settled: 45 judge- ments in favour of the physician and nine for the plaintiff. Of 645 resolved legal actions in 2020, 349 were dismissed, discontinued or abandoned and 259 were settled with the plaintiff, while 29 judgements were for the physician and eight for the plaintiff. "It's unlikely that there are fewer mistakes being made," says Harte. "In fact, as we

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