Canadian Lawyer

www.canadianlawyermag.com 29 "How do you fix the problem? The answer is changing the mandate of the CMPA from protecting doctors' professional reputations to compensating victims of medical mistakes at the lowest reasonable cost." Paul Harte, Harte Law RESOLVED LEGAL ACTIONS Judgment for plaintiff Judgment for physician Settled with plaintiff Dismissed/discontinued/abandoned 200 400 600 800 1000 2019 775 2020 645 2018 778 2017 769 2016 839 Source: CMPA get more complicated medicine and more multi-disciplinary teams, the error rate is likely higher, not lower. What's happening is that, because of the impediments to suing, all kinds of meritorious claims are going without compensation." The CMPA takes issue with arguments that Harte and other lawyers use to criti- cize the CMPA. Dr. Todd Watkins, associate CEO with the CMPA, says the organization's mandate is to "protect the professional integ- rity of physicians and promote safe medical care in Canada." Legal actions naturally call into question the integrity and reputation of the physician, he says, so allegations that question the physician's medical judgment and expertise "can be devastating to their future ability to practice, regardless of any monetary value." Accordingly, says Watkins, when a patient initiates a claim against a physician member, the role of the CMPA is to assist the member in their defence if the care provided is medi- cally defensible. "If the standard of care was met, the integrity and reputation of the member will be defended against the claim. However, if experts conclude the standard of care was not met, and this failure harmed the patient, appropriate financial compensation to the injured patient or the patient's family or estate will be provided." As for the "war chest" the CMPA has, Watkins says it is an unfair assessment that doesn't reflect the association's approach to defending physicians or that it is structured with sufficient funds to compensate those who have received negligent care, now and in the future. "The CMPA is committed to ensuring we can compensate patients and their fami- lies appropriately and in an amount that reflects their long-term care needs," he says. And unlike an insurance company, the CMPA is not restricted by pre-set compensation amounts or capped damages. There are also plaintiff lawyers who don't share Harte's position. Richard Halpern, a malpractice lawyer with Gluckstein Lawyers, says "the fact that most plaintiffs lose their case against doctors is not an indication of a problem with the system, it's an indication the problem is with their case. "Judges don't care how much money the CMPA has. If you go to trial against a doctor, and you lose the case, it's [for] one of two reasons. Number one, your case didn't have merit to begin with. Or number two, your lawyer didn't handle the case properly." Ryan Breeden, who spent several years working for a law firm that was counsel to the CMPA in Ontario, adds that medical malprac- tice is difficult to litigate and often expensive. "It's more about the law and the standard of proof that a plaintiff has to meet. The approach of the CMPA is that if a case is considered defensible, they will defend it, and if not, it will be settled. I don't take issue with that." Breeden adds that smaller cases often don't get pursued because of how the system is set up. However, the flip side of the coin is that serious cases involving catastrophic injury are given settlements or awards to meet their care needs better. Unlike insur- ance for vehicle accidents, there are no limits on medical malpractice cases. The question of reputation is important for members of the medical profession, says Breeden, as it can have lasting consequences. He says that no procedure or treatment has a 100 per cent chance of success, and someone will inevitably be on the wrong side of the statistics. "These cases tend to be litigated in the communities where doctors live and work, and it's not like a car accident with insurance, which will be settled."

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