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Issue link: https://digital.canadianlawyermag.com/i/1527910
44 www.canadianlawyermag.com LEGAL REPORT MEDICAL MALPRACTICE Plaintiff lawyers hope two recent decisions mean more equitable interest will be paid on medical malpractice damages, writes Zena Olijnyk A fair return in medical cases IN CANADA'S legal world of medical malpractice, lawsuits launched by those who seek damages for injuries they say were caused by their physicians are often described as "David and Goliath" battles. Plaintiffs say their search for redress is often greeted with a "scorched earth" response from the Canadian Medical Protective Agency, a fund set up to protect and defend physicians. This defence, they say, often involves a reluctance to settle and a trial process riddled with delays and appeals that result in awards being given to plaintiffs many years after they first sued. Even when a case ends with an award for the plaintiff, the matter doesn't necessarily stop there. There can be a clash over what amount of prejudgment interest should be added to the award, with the CMPA often arguing it should pay less interest than plaintiffs feel they are entitled to. However, two related decisions from the Court of Appeal for Ontario released on August 15 – one involving the CMPA, the other a personal injury case in which an insurer represented the defence – give medical malpractice lawyers optimism that their clients will more often receive fairer prejudgment interest payments. They also hope that prejudgment awards will better reflect the returns plaintiffs could earn in the markets if they had invested the money themselves as legal proceedings dragged on. "We now feel more empowered as plaintiff lawyers, based on these court of appeal decisions, to put into evidence what the CMPA's rates of return have been," says Toronto-based Sonia Nijjar of Neinstein LLP. "We've never been able to do that before – ask a judge to consider the rates of return the CMPA is getting even though it argues at the same time that the prejudgment interest it should pay out be much less." Aleks Mladenovic, a medical malpractice lawyer with TR Law in Toronto, points to the impressive returns the CMPA has made on its investments over the past several years. In its 2023 annual report, the CMPA says, "With favourable overall market performance, our investment portfolio earned 8.5 percent in returns, helping us close 2023 in a strong financial position." The 2021 annual report notes that the investment portfolio produced a positive return of 12.8 percent that year. In the annual report for 2022, when the CMPA lost money on its investments (about $200 million that year), it still boasted, "Over the past 10 years, we have achieved exceptional returns on our investment portfolio – earning a 7.96 percent compound annual return." We now feel more empowered as plaintiff lawyers, based on these court of appeal decisions, to put into evidence what the CMPA's rates of return have been" Sonia Nijjar, Neinstein LLP