The Risks and Rewards of Medical Negligence Law

In a 24-year review of medical negligence cases (1992 – 2016) in Ontario, plaintiffs lost more than two-thirds of the non-jury trials that were started. ¹² Even when cases were appealed the plaintiff was less likely to be successful. During those 24 years, both plaintiffs and the defendant physicians appealed a roughly equal number of decisions,¹³ but when a physician appealed it was allowed 37% of the time with 75% of those resulting in a judgment in favour of the physician and in the remaining 25% a new trial was ordered. In contrast, only 12% of the appeals launched by plaintiffs were allowed14 resulting in a judgment in favour of the plaintiff 43% of the time and in the remaining 57% a new trial was ordered.

Professor Erik Knutsen details the likely reasons for these results, noting that errors of fact were the most common reason for the Court of Appeal allowing an appeal. The most common error of fact was that there was insufficient evidence for a trial court to have found causation in favour of the plaintiff.¹⁵ This occurred in 30% of allowed appeals, emphasizing the importance of having robust expert opinions conveyed in a way that the court can understand, to ensure you have laid a solid evidentiary foundation to prove causation.

Although Knutsen’s data is not directly applicable to British Columbia, when combined with the CMPA statistics, it becomes clear that to improve the prospects of success for you and your client, careful case selection and a meticulous investigation are necessary before starting an action.

Conclusion

Medical negligence lawsuits are challenging and highly technical. They require expertise in medicine, the law and the complicated systems that health care professionals function within. Taking on a medical negligence case can be daunting. It can take years of building the knowledge base and relationships that are key to success. Pairing up with counsel who have experience in medical negligence cases can be a great way to get started. Knowledge of the healthcare system, medical processes, procedures and advances in medical technology is required. In addition, lawyers must build relationships with an array of liability, causation and damages experts to write the necessary expert reports. All of these factors combine to create a practice in law that is demanding, but there is nothing like the “eureka” moment when the medicine and the law mesh together to support a case with winning potential.

In this series of injury-based articles we will highlight cases in which many of these challenges and rewards are evident. Sometimes the plaintiffs were successful, sometimes not. By reviewing cases with similar injuries and comparing the results, we hope to illustrate how the plaintiff was able to succeed, and when they didn’t, what strategies may have been available to them to improve their chance of success.

1. Dybongco-Rimando Estate v. Jackiewicz, 2003 CanLII 7541 (ON SC) <https://canlii.ca/t/1bx27> at para 61
2. Ries, Nola M. “ Innovation in Healthcare, Innovation in Law: Does the Law Support Interprofessional Collaboration in Canadian Health Systems?” Osgoode Hall Law Journal 54.1 (2016) : 87-124.
3. Ibid.
4. CMPA, “Mission and Vision” (2021) online: <https://www.cmpa-acpm.ca/en/home>
5. Vanessa Milne, Sachin Pendharkar & Michael Nolan “Is Canada’s medical malpractice system working?” (20 November 2014), online: <https://healthydebate.ca/2014/11/topic/cmpa-medical-malpractice/> at para 14.
6. Knutsen, Erik, “The Medical Malpractice Landscape in Ontario: Fact, Trends and Analysis of Trials and Appeals” (2017) 47:2 Adv Q 131 at 138.
7. Gerald B. Robertson & Ellen I. Picard, Legal Liability of Doctors and Hospital in Canada, 5^th ed (Toronto: Thomson Reuters Canada Limited, 2017) at 658, 659.
8. 2019 Annual report (cmpa-acpm.ca), CMPA – The CMPA 2020 Annual Report | Consolidated Financial Statements (cmpa-acpm.ca)
9. CMPA, “The CMPA 2020 Annual Report | Consolidated Financial Statements”, online: CMPA <https://www.cmpa-acpm.ca/en/about/annual-report#section-number>
10. Supra note 7 at 139.
11. Supra note 7 at 144.
12. Supra note 7 at 144.
13. Ibid at 146.
14. Ibid at 150.
15. Ibid at 152.