Expect a Vigorous Defence
Part of the reason these cases are complex for plaintiffs is that they are vigorously defended by highly skilled lawyers with years of experience and in some cases, unlimited funding. Whether the defendants are physicians, nurses, allied health professionals or the institutions they work in, they all have access to funds to pay for their defence and to pay out a settlement or judgment if necessary.
The CMPA is the member-funded mutual defence organization for physicians. In addition to its mission to protect the professional integrity of physicians and to promote safe medical care in Canada, the CMPA envisions itself as an essential component of the Canadian healthcare system.4 Along with involvement in research to promote safe medical care in Canada and physician education, the CMPA assists physicians with legal advice and funds their legal defence if they become a defendant in a lawsuit.5 Patients who have suffered an injury due to medical negligence are sometimes interested in litigating solely “for the principle of the thing” which is not usually a viable basis on which to start an action. The CMPA, on the other hand, does have the resources to litigate cases on principle rather than on an economic basis. The organization is able to retain any number of experts and some of the most experienced professional negligence defence lawyers in the country to defend physicians. This fact, combined with their mission to protect the professional integrity of physicians, results in their policy to defend the defensible. 6 The CMPA is prepared to spend
more money defending a case than they might have to pay in a judgment. All of these factors can create significant hurdles for a patient considering launching a medical negligence lawsuit.
The CMPA publishes an annual report that documents the changing patterns of negligence lawsuits against physicians. Medical negligence claims against physicians have been dropping over the years from a high of approximately 2.5 claims per 100 members in the mid 1990s down to 0.71 claims per 100 members in 2020. This is a decrease in the number of claims of 48% in the last 25 years. Despite this drop in claims, until 2015 the number of claims paid out through settlement or judgment had remained somewhat stable; between 300 and 400 a year, perhaps suggesting that less meritorious claims were being advanced less often.7 Recent data reveals a further drop in plaintiff success, with an average of 286 claims being paid out in each of the last five years.8 Recent data reveals a further drop in plaintiff success, with an average of 286 claims being paid out in each of the last five years.8
These numbers, of course, do not tell the whole story about medical negligence claims. Statistical information on the liability of hospitals, nurses and other hospital employees is generally not available. Health care professionals who are in private practice such as dentists, physiotherapists and pharmacists are insured through professional liability insurance providers that are not required to report their statistics publicly. Nonetheless, a vigorous defence can be expected for any health care professional named as a defendant in an action, and a “vigorous prosecution” will be needed to succeed in a claim against a hospital or any of these health care professionals.
