Canadian Lawyer

30 www.canadianlawyermag.com LEGAL REPORT MEDICAL MALPRACTICE NEW MEDICO-LEGAL CASES Source: CMPA Legal actions College matters Hospital matters Paying Agency matters 0 2000 4000 6000 8000 10000 e d c b a 2020 7,948 9,510 9,760 8,986 8,903 2019 2018 2017 2016 Halpern agrees, saying doctors are enti- tled to protect their reputation. He adds that what a patient sees as malpractice in many cases is simply a bad outcome despite a proper standard of care. And often, there is an underlying health issue with the patient, or the nature of the procedure comes with some known risks that the patient should have agreed to through informed consent. "Every procedure carries risk. Not all bad outcomes are due to bad care, but some are," Halpern says. The role of the malpractice lawyer is to tease out which are which. However, Harte says the system under the CMPA works on the "archaic view that doctors never make mistakes," and too much time is spent defending that view. The premise is, "if you admit to any kind of an error, that means that you're inherently not a good doctor and your reputation takes a hit," he says. That isn't the case, he adds — "even excellent doctors make mistakes." When it comes to government reimburse- ment of most of the fees doctors pay to be part of the CMPA, Harte says this goes back to the rise of medical malpractice premiums in the 1980s, particularly in the United States, and the fear that the same thing might happen here. This resulted in medical associations arguing that this could mean losing doctors, so they struck an agreement with the prov- inces outlining how the government would reimburse any increase in fees beyond a certain base level. According to Harte, "Now, 30 years later, every specialty pays a different premium, but in general, 90 per cent of the premium is reimbursed because that base rate has even been increased by inflation." Halpern argues that subsidizing doctors on malpractice fees is a fair trade-off for Canada's universal healthcare system. "Because of that, the system has capped earnings for doctors. They are told what to charge for a procedure," he says, arguing that doctors in Canada are probably under- paid relative to counterparts elsewhere. "One of the things doctors were able to negotiate was partial subsidization of their premiums for malpractice. I think that's completely appropriate." The CMPA's Watkins contends the group is not subsidized and does not receive any funding from governments or taxpayers. "The CMPA collects membership fees from doctors each year, and these funds held are used to compensate patients injured as a result of negligent medical care [or fault in Quebec], support members facing medico-legal diffi- culties and advance safe medical care." Instead of paying doctors more money, he says, governments reimburse doctors directly for a portion of their CMPA fees. "The amount of reimbursement varies by province or territory depending on the specific provin- cial-territorial agreement in place. These agreements are negotiated by provincial or territorial medical associations or federa- tions. The CMPA is not a party to these nego- tiations or agreements." The other challenge for malpractice plain- tiffs is finding expert witnesses to testify whether a physician was negligent and if poor performance hurt the patient. Harte says most cases rest on such evidence. Plaintiff lawyers say it's challenging to find someone willing to testify against a colleague, and a culture of silence and "circling the wagons" exist. However, Halpern at Gluckstein says too much is made of this argument. He says it is true that many doctors are hesitant to criticize their colleagues, "but I have been doing this more than three decades now, and I've never had a case where I couldn't find an expert who was prepared to give me an objective opinion." "It may be challenging for us to find experts who are prepared to testify. The fact is that there are always highly qualified, very competent experts who will look at your case and provide you with an objective opinion." Breeden agrees, saying the inability to find experts to testify for the plaintiff is "overblown." As for solutions to some of the challenges of dealing with malpractice cases, especially at the lower end of the potential award or settlement spectrum, they range from better education and training to no-fault insurance models used for vehicle accident claims. Says Harte: "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." He says the current system leads to a huge dichotomy between winners and losers — with the most serious cases of proven malpractice well-com- pensated while cases of lesser economic value are shut out of the system. A more inclusive system would lead to greater economic dealing of more cases, which would mean there would be more lawyers to represent malpractice litigants. "We need to figure out a way to reduce trans- action costs. And one of the ways you do that is by settling cases quickly by identifying any case that has to be resolved and settling it for a fair dollar." Other (includes human rights, inquests, privacy investigations, threats)

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