In 2007, Canadian doctors were hit with 928 legal actions, a 17 percent drop from 2003. Only about 100 cases a year go to trial.
One reason: Canadian law firms, unlike U.S. firms, often require plaintiffs to pay for an initial investigation to determine whether the claim has merit. That cost discourages many people from pursuing a lawsuit.
Another deterrent, plaintiffs’ attorneys say, is that the Canadian Medical Protective Association is aggressive in defending its members because it is in the unique position of insuring virtually all of the country’s 76,000 or so doctors.
"It’s different from the U.S., where you have a great number of private insurers, each with a different corporate mentality to litigation,‘’ says Richard Halpern, a Toronto attorney.
"Here, we don’t see nuisance payments to settle cases, we see where the CMPA is prepared to throw all the money at it to defend it no matter what it’s worth. Litigation in Canada is therefore very, very expensive, and there are very few plaintiff’s lawyers with the wherewithal to carry through with these cases.‘’
The association’s legal fees have risen, but its track record is strong: Of the cases tried in 2007, judgments went in the patient’s favor 25 times and the doctor’s 70 times. The median amount of damages was about $91,000.
Although Canada allows jury trials, the few cases that go to court are usually tried in front of a judge.
"Some of my cases are too complex for a jury, and it does prolong the trial and use up a lot of resources,‘’ Halpern says. "On the other hand, I do believe we don’t make enough use of juries. Juries may be more sympathetic, particularly when you do obstetric cases. There’s the sympathy factor.‘’
Halpern is awaiting a judge’s ruling in a case in which a baby was born with cerebral palsy because a nurse failed to realize the baby had been starved of oxygen in the womb. Halpern would be surprised if the judge awarded punitive damages.
"We generally don’t pursue that here in Canada because most medical cases involve negligence,‘’ not intentional wrongdoing, Halpern says. "I’ve never seen a punitive damage award in a medical malpractice case.‘’
