Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 5 7 C anada's medical malpractice system is ailing and a bold new approach is required for it to recover, says Elaine Gibson. The Dalhousie University law professor, who will release a review of the medical malpractice system in Canada later this year, has concluded a no-fault system would be more beneficial for the parties involved as well as the court system. Currently, the Canadian Medical Protective Association, which calls itself "a mutual defence association," oversees cases brought against physicians. "The malpractice system at present is problem- atic," says Gibson. "It's skewed in a way that other areas of tort law are less skewed. Plaintiffs are significantly disadvantaged because of the way the CMPA operates." The physicians' association, she notes, "will vigorously defend the reputations of physi- cians who have been sued so long as they believe there is a reasonable case to be put forward." The CMPA's approach is costly for plaintiffs and the court system, and critics have charged it is also a means of dissuad- ing other patients from coming forward. A no-fault system would help to address these and other concerns, says Gibson. "If you remove the blame aspects of a poten- tial claim, it enables the physician not to be in an adversarial position with the patient but a positive relationship. I believe most physicians would appreciate the ability to do that." Of course, notes Gibson, a no-fault sys- tem "reduces the role of lawyers." No-fault systems are currently in place in several American states and other countries, including Sweden, Wales, and New Zea- land. In Sweden, 99.9 per cent of claims are resolved without recourse to court even though that option is available. Still, no-fault is not a system the CMPA favours. "The current medical liability system in Canada is fundamentally sound and is very likely the best possible model for our circumstances," says CMPA spokes- person Tracy Murphy in Ottawa. According to the CMPA, there are a few jurisdictions where no-fault systems appear to be effective, but these tend to be coun- tries such as Sweden, in which there exists an extensive social welfare system. "Any compensation related to medical injury is largely a 'top-up' of an already comprehen- sive benefit package," says Murphy. Until recently, there has been little political appetite to move to a no-fault system for medical malpractice claims. Two earlier reports both recommended such a system, at least in part, but those recommendations were left to die. Now, in the wake of dramatic increases in physi- cian premiums recently put in place by the CMPA, which are paid for, in large part, by most provincial governments, new life has been breathed into the issue. "It's pos- sible this sharp fee increase will stimulate government in particular to take action," says Gibson. — DONALEE MOULTON donalee@quantumcommunications.ca REGIONAL WRAP-UP AT L A N T I C \ AT L A N T I C \ C E N T R A L \ W E S T Canada's medical malpractice system ailing Continued on page 8 IMPROVING MAINTENANCE ENFORCEMENT IN N.S. A formal review of Nova Scotia's maintenance enforcement program has resulted in 27 recommendations being put forward. Justice Minister Diana Whalen has now announced all of those recommendations have been accepted. The intent, according to Whalen, is to help fami- lies more easily and effectively collect court-ordered child and spousal sup- port payments. The review, "Improving Client Services for Families," concluded that the use of existing enforcement tools, such as the suspension of drivers' licences

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