Less Patients are Suing Doctors for Medical Malpractice - But Why?

Iv Drip

Written by Roger Shoreman, Senior Litigation Law Clerk

In a recent CBC article, “As fewer patients sue their doctor, the rate of winning malpractice suits is dropping too”,  a medical malpractice claimant was interviewed about the uphill battle of pursuing his case. Jim Wiseman, age 78, of Barrie, Ontario had a sponge left inside of him following an operation to treat his bladder cancer in 2016. He required a second surgery to have the sponge removed.

Mr. Wiseman was told that his original surgery went well, and then days later experienced severe stomach pains. Following an x-ray, the source of the pain was found -- a medical sponge was accidentally left inside him following surgery. The article states that when patients like Mr. Wiseman try to sue their doctor, the rate of success is very low. The Canadian Medical Protective Association (CMPA) describes itself as a “mutual defence organization that provides advice and assistance to doctors when medical-legal difficulties arise”. That includes defending claims against doctors, and paying claims where liability is accepted or found. As a part of its investigation into medical malpractice cases, CBC News obtained and analyzed every annual report filed by the CMPA in the past 40 years. It discovered that success at trial has decreased from  1 in 3 in favour of the patient in the late 1970’s to close to 1 in 5 in the past five years.

The article portrays lawsuits seeking compensation as an uphill battle. What the CMPA statistics show is that of all medical malpractice actions commenced, 55.2% are dismissed, discontinued or abandoned; 36.7% are settled; 6.5 % are found in favour of the doctor at trial; and 1.6% in favour of the patients. Despite the claims of Douglas Bell of the CMPA that they are putting considerable effort into streamlining the management of cases in order to have them end as soon as possible, and that they only defend the defensible, the reality is that many of the  36.7% of cases that settle out of court, only do so after protracted and costly litigation, and often on the eve of trial. Jim Wiseman, who is 78, is still waiting for a settlement almost two-and-a-half years into his case in which a sponge was left inside him. Of the cases that proceed to trial that are won by the Plaintiff (injured party), some are appealed, extending the litigation process even further. A case in point is MacGregor v  Potts, an Obstetrical case that was featured in a front-page  article in the Toronto Star on November 28, 2015, titled “The high cost of OB/Gyn mistakes in Ontario”. In that case it took 13 years for Matthew MacGregor’s parents, Bill and Laura MacGregor, to recover compensation to address the needs of their son. The article states that “throughout, they feared losing their home and their marriage”. While Laura MacGregor said that she might be able to forgive Dr. Potts (for his negligence), she could not forgive “the system and the CMPA that tortured us for 13 years”. Douglas Bell of the CMPA was also quoted in that Star article, stating that his organization “settles cases as quickly as possible when it believes a legitimate error has been committed by a physician”. One would surmise that unintentionally leaving a sponge in a patient would qualify as “legitimate error”; yet 13 years of litigation would hardly represent a case that is settled “as quickly as possible”.

At Gluckstein Lawyers we achieved substantial settlements in three medical negligence cases last year, and won the only case that we were forced to take to trial. All of the cases that settled required extensive litigation and multiple pre-trial hearings before they were resolved, and the settlements in each case took several years to achieve.   While the CMPA statistics on outcomes are alarming, we believe that they are at least in part due to poor case selection. Before commencing a medical negligence action, a thorough investigation needs to be conducted into the merits of the case. The burden of proof rests with the Plaintiff to establish not only liability (i.e. a departure from the required Standard of Care), but also Causation (i.e. that the Plaintiff’s injury was caused by that departure), and finally Damages (i.e. the losses arising from the negligence).

At Gluckstein Lawyers we conduct a thorough investigation to ensure that a potential medical negligence has merit before commencing an action, knowing that the CMPA’s medical malpractice lawyers have at their disposal the financial resources and other means to retain multiple experts on every issue. These cases are determined largely by expert opinion (sometimes referred to as a “battle of the experts”), and cases should not be commenced without supportive expert opinions on liability, and causation. We suspect that many of the cases that fall within the 55.2% that are dismissed, discontinued or abandoned, do so because of lack of investigation or supportive expert opinion.   The fact is that if a case appears to have merit, with persuasive expert opinions, the Defence is more likely to seek to settle it, rather than take a case to trial where there may be risk of a significantly higher award that can set a precedent for awards in future cases. It is those cases where the Defence sees little merit and weak expert opinions, that may motivate the CMPA to proceed to trial. It is at this stage, just before trial, where many cases are abandoned, usually after being told by a pre-trial Judge that a successful outcome is unlikely. According to the CBC article, the CMPA has vast financial resources allowing it to mount a very aggressive defence of doctors facing allegations of medical negligence.  On the other hand, it is well known to Plaintiff Medical Malpractice Lawyers that financing these cases places plaintiffs on a far less level playing field. The reality is that unless victims of medical negligence are extremely wealthy – and very few are -- they cannot afford to litigate these cases in which the expert fees alone can cost several hundred thousand dollars. Firms that take on these cases must stand ready to fund the litigation, including the cost of experts, if there is to be any hope of successfully advancing such claims. Payment of lawyers fees is traditionally on a “contingency” basis, meaning that fees are paid only if the case is successfully resolved and the plaintiff compensated. The takeaway is that it is important to have specialized representation. Medical malpractice cases should not be commenced by generalists, in much the same way as family doctors should not perform open heart surgery. Moreover, these cases absolutely should not be commenced or litigated by unrepresented litigants.   To recap, medical malpractice cases are by their nature highly complex. They require extensive investigation to determine whether they have merit, before they are commenced. They are expert-driven, and without strong expert opinions they will not succeed. The advocacy of the lawyers in these cases must be of the highest level on both sides, as the resources available to the doctors far exceed those available to most patients. With the expertise that we provide at Gluckstein Lawyers, our goal is that your case will be among that 36.7% of medical malpractice actions that are settled, or the 1.6% of those that are resolved successfully following a trial. While the rules regarding time limitations are somewhat nuanced, it is important to bear in mind that medical malpractice actions typically must be commenced within a two year period following the negligent act or omission. Exceptions exist and the timeline is extended in the case of children or parties who are under disability, or where the act or omission was not reasonably discoverable within the two-year period. Given the time necessary to adequately investigate the case – often many months --, it is advisable to consult with a medical malpractice lawyer well before the expiry of the limitation period.

Finally, it is important to understand that a medical malpractice case is likely to take several years to resolve; therefore, patience is not only a virtue, it is indeed a necessity in such claims. If you believe that you or a loved one may have suffered from medical malpractice, it is advisable to contact a personal injury lawyer who specializes in medical malpractice. Initial consultations are always free of charge or obligation, and the expertise of a medical malpractice lawyer will be invaluable in providing advice as to whether there appears to be grounds to investigate a potential medical malpractice action. Although the realities and obstacles of the medical malpractice action are intimidating, at Gluckstein Lawyers we are very proud of our successes in this unique area of practice, which have resulted in substantial settlements and awards that have provided much-needed compensation for the losses suffered by our clients.  




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