None of these gloomy statistics are to suggest that medical negligence cases cannot be won by the plaintiff. It simply emphasizes the importance of careful case selection, based on the opinions of your experts on the prospect of success.
Imbalance of Resources
Physicians, healthcare facilities and the employees for which they are vicariously liable make up most of the defendants in medical negligence cases. All of these defendants have access to significant resources to fund their defence.
As of December 31, 2020 the CMPA held approximately $5.7 billion in assets; $3.9 billion of which is held as a provision for outstanding claims. 9 Healthcare facilities are usually publicly funded not-for-profit-organizations and carry insurance to provide legal defence and indemnity if required.10 These insurers are well resourced and very experienced and effective at defending the organizations they insure.
As of December 31, 2020 the CMPA held approximately $5.7 billion in assets; $3.9 billion of which is held as a provision for outstanding claims. 9 Healthcare facilities are usually publicly funded not-for-profit-organizations and carry insurance to provide legal defence and indemnity if required.10 These insurers are well resourced and very experienced and effective at defending the organizations they insure.
Medical negligence matters can rapidly become inordinately expensive and the plaintiff who has suffered an injury is rarely able to cover those costs. Usually, it is the firm taking on the case that bears the financial risk. Although litigation insurance is available for motor vehicle litigation, in the medical negligence context it is both difficult to obtain and can be very costly for the plaintiff.
To illustrate the financial risks to a plaintiff, taking a birth injury case to trial in BC can cost anywhere from $250,000 to $300,000 for disbursements alone. Most of these costs are for the necessary expert opinions, and in many ways, these are “fixed costs.” Every case requires a number of experts to opine on the standard of care, causation and damages. What is variable is the potential compensation. Clearly a careful financial risk-benefit analysis is required before taking on a case. Unless the plaintiff’s injuries are life-altering or catastrophic, the damages claim may not be large enough to tip the scales in favour of starting an action, particularly given that statistically plaintiffs lose nearly two-thirds of the time.11 Another consideration is that in Canada the loser pays part of the winner’s costs, which can be a considerable additional financial burden. All of this needs to be factored in when considering commencing a medical negligence action.
Uphill Battle for Plaintiffs
Although CMPA’s approach is to “defend the defensible”, it is prepared to settle cases when the plaintiff’s expert opinions are persuasive. Historically plaintiffs find themselves on the losing side of medical negligence lawsuits. From 2016 to 2020, an average of 843 new actions were started each year. Of the 266 medical legal cases that went to trial in that five-year period, only 44 cases (17%) were decided for the plaintiff. Plaintiffs do fare better when settlements are factored in. In that same five-year period, 3,540 cases against physicians were resolved without going to trial. Of these 39% were settled with the plaintiff, while the remaining 61% were either dismissed, discontinued or abandoned.
