One Year On - Goudge’s Medical Liability Review
By Jan Marin, Senior Associate & Lawyer On March 9, 2016, the Ministry of Health and Long Term Care invited Stephen Goudge (former Justice on the Ontario Court of Appeal) to conduct a review of the civil justice system with respect to cases of medical liability. Goudge’s report was finally released to the public almost one year ago, on May 4, 2018. Concerns about the current system have arisen due to the rising costs of medical liability protection and the length of time required for individuals to obtain compensation. To date, none of Goudge’s recommendations have been implemented. In his report, Goudge indicated that the total volume of cases remained largely constant between 1990 and 2015. Total case costs, including both transactional costs (legal defence) and outcome costs (damages) are 4-5 times the amount they were 25 years ago; however, he did not account for any inflation. He also indicated that the top 25% of cases account for 87% of the outcome costs. Goudge himself recognized the limitations of his analysis considering that it was based on anecdotal reporting, which certainly limited his ability to conduct a fulsome 360-degree review of the current medical liability landscape. He focused his review on the length of time required for individuals to obtain compensation in a medical malpractice action and the rising costs of medical liability protection. He focused his analysis on the rising outcome costs but failed to consider transactional costs in any meaningful way. It has long been known that the Canadian Medical Protective Association (CMPA) spares no expense in defending actions brought against physicians and failure to consider this piece of the puzzle leaves the analysis incomplete. The CMPA has a mandate to protect a doctor’s professional reputation; however, they are publically funded and an update to this mandate should include consideration of cost efficiency. While the CMPA will certainly settle cases with merit it typically waits until the pre-trial stage to do so, resulting in excess expense, time and energy. None of this was considered by Goudge. In his recommendations to reduce outcome costs he endeavoured to ensure that those injured by medical mistake receive ‘appropriate compensation’. He took a concerted approach to make recommendations which would not further disadvantage or harm injured plaintiffs. That said, his recommendations require significant additional cost, specifically the establishment of an advisory committee to ‘dialogue’ with the civil rules committee and the Ministry of Justice in an attempt to make change. The committee would be an ongoing entity to deal with future issues and concerns in medical liability litigation. Recommendations related to future care payouts, including usage of a government entity to procure and provide services as well as a government entity to hold future care funds and administer periodic payments are unrealistic and overly bureaucratic. The choice of service provider certainly can and should be a personal decision made by the injured plaintiff. The open market ensures competitive rates and service quality. Perhaps the most concerning recommendation was the increased use of the reference procedure to adjudicate Future Care Costs. While not problematic on its face, his suggestion that this review take place “even if parties do not consent”, is untenable and frankly usurps the role and responsibility of counsel. While it has been a year since the report was released to the public (longer still since it was delivered to the Ministry of Health) none of the recommendations have been implemented. That said, some of Goudge’s recommendations are happening organically including increased usage of case management for medical negligence actions and specialized judicial expertise at pretrial and trial, which certainly are positive changes to ensure that these cases are not unnecessarily delayed and can be heard by judges with an appreciation for the unique issues in these matters. Without question, Goudge was limited by the scope of his review, the use of anecdotal accounts and only partial access to the CMPA’s data. Only time will tell if any of his recommendations are carried out. I suspect further consultation will take place before we see any significant changes.
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