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54 www.canadianlawyermag.com LEGAL REPORT MEDICAL MALPRACTICE Association (CMPA) "is publicly funded and very well financed." The most contentious change for medical malpractice litigators is the elimination of oral examinations for discovery, which would be replaced by lawyer-prepared witness statements and a narrower approach to document disclosure. Mladenovic predicts that these statements would be drafted by lawyers for their clients, making meaningful impeachment at trial impossible. He stresses that every medical malpractice case he had won hinged on impeachment – where a physician says one thing at discovery and another at trial. "That will now be impossible to achieve," he says. He describes the new approach to docu- ment disclosure as equally problematic. The "known adverse document" rule, which requires parties to produce only the docu- ments they intend to rely on and those they know to be adverse, is, in his view, unworkable. "The committee even admits that they don't even know what that means. At one point, they say, 'Admittedly we haven't been able to agree on what constitutes a known adverse document'... If they don't know what a known adverse document is, how in the hell am I supposed to know that?" he says. Mladenovic says that while the reforms may be worthwhile in other areas, medical malpractice litigation is fundamentally different from other types of civil cases. "Medical malpractice cases should defi- nitely be exempted from these rule changes. There's no question in my mind," he says. Since healthcare is publicly funded, including much of the money funding the CMPA, "when it goes wrong, we should have the highest access to justice because we paid for it. Doctors have their premiums paid by the public." He also rejects the idea that the current discovery process is responsible for delays. "Examinations for discovery do not delay cases." If the goal is to speed up litigation, he says, the answer is simple: "Impose time- lines. You could say [that] the parties must conduct examinations for discovery within 12 months of the close of pleadings. And guess what will happen? We'll all just do it." British Columbia's approach offers contrast Paul McGivern, a medical malpractice lawyer at Pacific Medical Law in Vancouver, echoes these concerns, even though such reforms are not yet proposed in British Columbia. "The ability to do examina- tions for discovery [is] absolutely critical to any prospect of succeeding on a medical malpractice claim," he says, dismissing liti- gation through affidavits as "nonsense." He argues that relying on written statements would let defendants avoid key admissions. McGivern points to BC's approach, where parties can secure trial dates soon after pleadings close, keeping cases focused and reducing delay. "Then everybody is working towards a date that we're going to get in front of a trial judge," he says – a "huge time-saving mechanism" that prevents procedural drift and wasted resources. He notes BC's seven-hour limit on discoveries, with the option to request more time if needed, as a reasonable compromise. "If they don't know what a known adverse document is, how in the hell am I supposed to know that?" Aleks Mladenovic, Thomson Rogers LLP PHASE 2 REFORMS IMPACTING MEDICAL MALPRACTICE No oral discovery: Oral examinations for discovery are eliminated, replaced by binding, lawyer-prepared witness statements. Upfront evidence: Parties must disclose primary evidence and witness statements at the outset of litigation. Limited document disclosure: Only documents a party intends to rely on, plus "known adverse documents," must be produced. Pre-litigation protocols: Early communication and document exchange are mandatory before filing a claim.