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46 www.canadianlawyermag.com LEGAL REPORT MEDICAL MALPRACTICE the defendant's insurer asked for the prejudgment interest rate on non-pecuniary damages to be set at 1.3 percent instead of the CJA-prescribed five percent rate in actions for personal injury cases. It also asked that prejudgment interest for past pecuniary damages be set at 0.8 percent. The plaintiffs responded with a cross- motion, asking that prejudgment interest for non-pecuniary and past pecuniary damages be set at 8.46 percent, reflecting the average rate of returns on Aubin's portfolio over the litigation period. Justice Heather Williams of the Superior Court of Justice granted the defendant's motion and dismissed Aubin's cross-motion, setting prejudgment interest rates for non- pecuniary and past pecuniary damages at 1.3 percent and 0.8 percent, respectively. Again, the appeal court overturned this decision, with Justice Roberts saying, "It was an error in principle for the trial judge to reject as irrelevant the consideration of the benefits that accrued to the [community centre's] insurer by retaining the monies that should have been paid to the appellants. "This was a relevant factor in this case that should have been taken into account in the trial judge's consideration of the overall justice of the case. Fairness requires the court to look at myriad factors, including the legislative purpose of the prejudgment interest scheme earlier referenced to deprive the wrongdoer of the use of the monies that should have been paid to the plaintiff." The appeal court also noted that the defendant's insurer during the relevant "How can you not consider those returns? What the court of appeal has said is that not only is this relevant – you should consider them" Michael Hodgins, MD Law CMPA INVESTMENT PORTFOLIO RETURNS 2012 2013 2014 2015 10.2% 17.5% 11.2% 7.8% 2016 2017 2018 2019 3.4% 114% 0.7% 11.3% 2020 2021 2022 2023 4.8% 2.8% [loss] 8.5% period had returns of double the five percent presumptive rate for non-pecuniary damages under the CJA and more than 10 times the 0.8 percent for past pecuniary damages. "The respondents' insurer had the benefit of the use of the funds that were ultimately paid to the appellants to compensate and support Ms. Aubin," Justice Roberts wrote. "Based on the averaged rate of return, the insurer still retains a substantial benefit, even if the prejudgment interest rate is raised to 8.46 percent as requested by the appellants." In support of her argument, Aubin's lawyers noted that the defendant's insurer had an average 12.99 percent rate of return on its investments, much higher than the portfolios of Aubin and her spouse. For its part, the CMPA makes it clear that it is not an insurer, though it effectively performs the same duties as an insurer in defending physicians. It describes itself as a "not-for-profit, mutual medical defence physician organization whose mission is to protect the integrity of physicians and promote safe medical care in Canada." In a statement to Canadian Lawyer, CMPA CEO Dr. Lisa Calder said that while the association does not comment on specific cases before the courts, "the issue of the rate of applicable prejudgment interest is an important one. "Any potential change in practice, which has been considered previously in both judicial and policy circles, should be fully debated in terms of its effect on efficiency and timeliness while fairly protecting the reasonable interests of all concerned." She added that the CMPA provides "timely and appropriate compensation to patients when it's proven they have been harmed by medical negligence." When it's clear that the standard of care was not met, CMPA "works toward resolution as quickly as possible." As for how doctors are reimbursed for a portion of their CMPA membership fees, this is "based on provincial contract agreements," and the CMPA is "not a party to these negotiations." CMPA BY THE NUMBERS NEW MEDICAL LEGAL CASES 2021 2022 2023 Legal actions – served 632 670 674 Legal actions – not served 326 272 305 Medical regulator matters 4,844 5,069 5,135 Hospital matters 2,011 1,859 2,064 Paying agency matters 206 176 187 Other 187 148 173 TOTAL 8,206 8,204 8,538 RESOLVED LEGAL ACTIONS 2021 2022 2023 Judgment for plaintiff 11 8 13 Judgment for physician 30 26 33 Settled with plaintiff 343 313 322 Dismissed/discontinued /abandoned 574 638 623 TOTAL 958 985 991