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Pain and Suffering

The question of medical negligence in British Columbia’s Cambridge affair

Friday, July 6, 2018 By Susanne Raab

As described in part one of this series, Drs. Sean and Rosemarie Cambridge, two foreign-trained physicians, provided medical care to hundreds of patients in Chilliwack, B.C., from 2011 to 2017, under a provisional medical licence issued by the College of Physicians and Surgeons of British Columbia.

In the fall of 2017, the Cambridge physicians’ medical licences were cancelled on the basis that they had failed to meet the requirements for continued registration and licensure. Specifically, they had failed to pass the first of two required examinations designed to evaluate the physicians’ skills and medical knowledge, notwithstanding several failed attempts and several deadline extensions required for personal reasons.

Cancellation of Licenses

The cancellation of the Cambridge physicians’ medical licences naturally leads many patients to question the care they received from these doctors, and whether any medical problems they suffered were caused by substandard care, or could have been avoided with appropriate treatment.

In considering a potential medical negligence claim, it is important to recognize that the Cambridge physicians do not get the benefit of being held to a lower standard of care on the basis that they were still in the process of qualifying. The standard of care expected of them is the same as the standard of care expected of any physician, which is that he or she use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases (Wilson v. Swanson [1956] S.C.R. 804; Robinson v. Sydenham District Hospital Corp. [2000] O.J.

Susanne Raab

No. 703).

If a physician holds him or herself out as a family physician, he or she is held to the same standard of care as all other family physicians, regardless of whether the licensure is provisional or full. This aspect of the law makes sense as it accords with the reasonable expectations of patients who expect any physician licensed to provide medical services in British Columbia to be competent to provide a safe level of care.

Potential Liability of the Physicians

It is, however, important to appreciate that the fact that these physicians did not satisfy the examination requirements is not evidence that they fell below the required standard of care in their treatment of any individual patient. In considering potential liability on the part of these physicians, it is, in fact, not even sufficient to prove that they fell below the standard of care. In order to succeed in a medical malpractice case, in addition to establishing a duty of care and breach of the standard of care, a plaintiff must prove, usually through expert evidence, that a specific breach of the standard of care was the legal and factual cause of the plaintiff’s injury or loss (Ter Neuzen v. Korn [1995] 3 S.C.R. 674).

Even if multiple breaches in the standard of care are proven, the most challenging part of any medical negligence case is establishing that one or more of these breaches of the standard of care caused or contributed to the injury or loss. This is most often where cases fail.

Proving Medical Malpractice

Proving causation in medical malpractices cases can be challenging because typically the plaintiff has pre-existing injuries or illnesses (the impetus for seeking the impugned medical treatment in the first place) and the precise mechanism of the injury is often unknown or alternatively explained by multiple contributing factors.

Further, advances in science can serve to muddy the waters rather than connect the dots between the breach of the standard of care and the injury or loss by adding to the proliferation of “known unknowns” or potential non-negligent causes of the injury or loss.

Indeed the difficulties in proving causation in medical malpractice cases is borne out by their dismal success rate. The statistics reveal that since 1996, the success rate of plaintiffs in medical malpractice trials has never exceeded 30 per cent.

The most recent annual report of the Canadian Medical Protective Association reveals that a mere 16 per cent of medical malpractice trials in Canada in 2016 were decided in the plaintiff’s favour.

While the statistics for settlements are somewhat more favourable to plaintiffs, they still fall in the minority.

For this reason, a cautious approach, informed by a thorough and comprehensive assessment of the case with the benefit of expert opinion, is required before any medical negligence case is commenced against a physician, even a physician whom the college has deemed to be not qualified to practise medicine.

This piece was originally posted in The Lawyers Daily. You can also read the PDF from our Publications page. 

Filed Under: Health News, Legal News, Medical Malpractice Tagged With: Accessibility, Birth Injury, British Columbia, Medical Errors, Medical Malpractice, Pacific Medical Law, Pain and Suffering, People with Disabilities, Vancouver Beaches

Four Reasons Why Awards are Less in Canada than the USA

Tuesday, June 16, 2015 By Admin

A Canadian courtroom never looks like the American television courtroom. Heated courtroom battles where lawyers dressed in business suits yell at each other using theatrical outbursts to persuade the jury and breathless investigators run into the courtroom at the 11th hour with a newly discovered piece of evidence, culminating in the court ordering a multi-million dollar medical malpractice award for the plaintiff – that doesn’t happen in Canada. Of course some of this excitement is purely tv-land drama, but some of it can be explained by the differences in our legal systems.

While there are many differences between the Canadian and American legal systems, a few of these differences contribute directly to the lower compensation a plaintiff can expect to receive for medical malpractice cases in Canada. This is true even if the negligence is caused by doctors’ mistakes or nurses’ mistakes. Here are some of those differences:

  1. Lower awards for pain and suffering in Canada – In 1978 the Supreme Court of Canada put an inflation-adjusted cap on how much a plaintiff can be compensated for the pain and suffering caused by a negligent defendant. In 2015, the most compensation that can be awarded for pain and suffering in Canada, no matter how catastrophic the injury, is about $350,000. Compare that to New York State alone where in 2011, 10 cases were awarded more than $3,500,000 for pain and suffering. Many US states are starting to put limits on claims for pain and suffering, and some of those limits are even lower than the Canadian cap. Nonetheless, there continues to be large awards available in a number of US jurisdictions.
  2. Socialized medicine lowers plaintiffs’ future costs – Plaintiffs can be awarded compensation for health care costs they will have to pay for themselves in the future. In Canada, defendants do not pay the plaintiff for provincially-funded health care, such as hospital in-patient care or physician appointments. In the United States, since an injured plaintiff may have to pay for future hospitalizations out of their own pocket, defendants can be required to compensate for those costs as well – this can amount to tens of millions of dollars.
  3. Jury awards are smaller in Canada – When judges decide how much a successful plaintiff should be awarded they must explain their decision in detailed written reasons. They are bound by the evidence presented and by decisions made in previous cases. Juries, on the other hand, do not write reasons to explain their findings. A sympathetic jury can award extremely high awards. Canadian juries tend to be much more conservative than their US counterparts, in part because the money to pay the awards often comes from tax funded programs such as ICBC, or hospitals. Large awards are viewed by some Canadian juries as coming out of their pockets as taxpayers. In addition, Canadian jury awards can be appealed if they are inordinately high and fall well outside the range of damages a judge would award.
  4. Punitive damages are less common in Canada – Our tort law system is aimed at compensating victims of negligence, not punishing the defendants. The compensation is intended to put the plaintiff back in the condition they would have been in if the negligence had not occurred – to the extent that is possible. In Canada, punitive damages are much less common than they are in the USA – in fact in medical malpractice lawsuits punitive damages are exceedingly rare.

People who have been injured by the negligence of a doctor, nurse or other health care professional can expect to be fairly compensated in Canada, and although the compensation awarded here is more modest than in the US, it can still provide some measure of comfort and assistance as people try to move forward with their lives after an injury caused by medical malpractice.

Filed Under: Medical Malpractice, Legal News Tagged With: Court Awarded Compensation, Court Awards, Medical Malpractice, Medical Negligence, Pain and Suffering, Vancouver

5 Common Myths about Medical Malpractice Lawsuits

Monday, September 9, 2013 By Admin

I began practicing medical malpractice law well over a decade ago, and over the years I have spoken with hundreds of people about potential lawsuits against doctors.

During this time, I have consistently encountered the following misconceptions about medical malpractice:

Myth #1 – Doctors are too powerful to sue. This is one of the most prevalent myths. While it is true that successfully suing a doctor is difficult, it can be done.

Here are the facts. Almost all of the doctors in Canada belong to the Canadian Medical Protective Association (the “CMPA”), a very sophisticated and well-resourced organization. The CMPA’s primary function is the protection of its members’ professional integrity. There are currently 86,000 doctors who are members of the CMPA, and it has financial assets of over $2.5 Billion. If a lawsuit is commenced against one of its members, the CMPA pays for the doctor’s defence costs (i.e. lawyer’s fees, expert’s fees and other expenses) as well as any settlement or judgment that results from a lawsuit.

In order to succeed with a medical malpractice lawsuit, it is critical that you retain lawyers experienced with medical malpractice lawsuits who have the resources and expertise necessary to prove your case. Starting a lawsuit with the hope that the physician will simply settle the claim to make it go away is foolhardy.

Myth #2 – Doctors all stick together. There is some truth to this. Many physicians are simply not prepared to testify against other physicians, especially within certain specialties or within certain communities.

This challenge can be overcome, however, by retaining experienced medical malpractice lawyers who are well respected in the field and have access to credible and objective experts who are prepared to testify against other doctors. Such experts are absolutely essential in order to be successful in a medical malpractice case. This is one of the most valuable resources an experienced medical malpractice lawyer can provide.

Myth #3 – Damages for pain and suffering are in the millions. This is a misconception that arises primarily from cases south of the border. In Canada, the compensation available to an injured plaintiff for pain and suffering, often referred to as “loss of enjoyment of life”, has been significantly limited by the Supreme Court of Canada. In 1978, the Supreme Court of Canada considered this issue in a series of cases, often referred to as the “trilogy”, and held that the maximum amount of money an injured plaintiff could receive for “pain and suffering” was $100,000. That amount has gradually increased over time to keep up with inflation, and is currently at approximately $350,000.

It is important to understand that this limit does not apply to other categories of damages, such as loss of income earning capacity and cost of care. These categories are not limited, and in the cases we prosecute, frequently result in awards in the millions.

Myth #4 – I have nothing to lose by starting a lawsuit. This is simply not true. The CMPA’s primary function is the protection of its members’ professional integrity. It vigorously defends all lawsuits brought against its members.

What this means is that the CMPA will not settle any lawsuit unless the plaintiff can prove (usually through expert evidence) that the doctor was negligent, and that it was the doctor’s negligence that caused the plaintiff’s injuries. This can be a difficult test to meet. The result is that over 60% of all lawsuits brought against doctors across the country (excluding Ontario and Quebec) are unsuccessful. Of those lawsuits that go to trial, 86% are unsuccessful. This has significant financial implications for plaintiffs.

If you start a lawsuit and lose following trial, you will be responsible for both the expenses your lawyer has incurred in prosecuting the case, depending on the terms of your retainer agreement with your lawyer, as well as the defendant physician’s costs and disbursements. This could amount to a significant sum of money.

In order to manage this risk, it is critical that before starting a lawsuit against a doctor, and again at key phases of the lawsuit, you and your lawyer carefully consider the strength of the case in relation to these financial risks.

Myth #5 – I am entitled to substantial compensation if a family member dies as a result of medical malpractice. Unfortunately, the legislation which deals with wrongful death in British Columbia, namely the Family Compensation Act, is outdated, inadequate and in desperate need of reform. I have responded to countless calls from grieving individuals who believe their spouse, parent or child died as a consequence of medical malpractice. Unless the deceased family member provided significant financial support or household/childcare services to the family, the individual is unlikely to receive sufficient compensation to make the costs and risk of a medical malpractice case worthwhile.

Filed Under: Health News, Medical Malpractice Tagged With: CMPA, Lawsuit, Medical Malpractice, Medical Malpractice Lawsuit, Medical Malpractice Lawyers, Pain and Suffering

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