Does medical malpractice liability model need fixing?

It’s been more than a year since Justice Stephen Goudge released his report to Ontario’s Ministry of Health and Long-Term Care resulting from his Medical Liability Review, making recommendations aimed at addressing rising damages in medical liability cases and improving the efficiency and timeliness of the medical liability system.

These recommendations included establishing statutory criteria for future care plans; efficiencies in the cost of future care services and periodic payments to plaintiffs; increased investment in independent supported living environments; and improvements to the discount rate. They also included procedural reforms such as the enhanced use of case management techniques, specialized judges and early fixed trial dates, in order to improve the efficiency of the system.

Although Goudge’s mandate did not extend to considering “enterprise liability,” i.e., holding the hospital liable rather than the responsible individual health-care provider, some plaintiff-side lawyers believe the system needs to change. Currently, a plaintiff will launch a lawsuit resulting from an “adverse event” against a doctor and possibly other members of the health-care team and the hospital, too.

The medical liability system has on the one side physicians, who are considered independent contractors and represented by the Canadian Medical Protective Association, and on the other side the hospitals and their staff, who are largely covered by the Healthcare Insurance Reciprocal of Canada, says Sonia Nijjar, who practises on the plaintiff side with Neinstein Personal Injury Lawyers in Toronto. 

If an error occurs in the hospital setting, plaintiffs must separately name each individual physician and separately name the hospital, she says. They must then prove individual liability against each defendant. The problem with this model, she argues, is twofold. First, the delivery of health care in Canada has become increasingly collaborative and team based, so it’s “often an artificial exercise to try and parse out individual fault or blame between the individual physician and another person on the health-care team who is legally considered an employee,” says Nijjar.

The result, she says, is that civil actions very rarely result in a clear understanding of what occurred and, therefore, there is little potential to deter future harm. This also results in protracted litigation where plaintiffs may have little access to care or treatment, which in turn worsens their conditions.

“Because of the nature of the system and the separation of identify between doctors and the rest of the health-care team, the process becomes fairly unwieldy,” says Duncan Embury, lead medical malpractice lawyer at Neinstein. “You’ve got at least two different sets of lawyers on for the defence: one for the hospital, one for the doctors and often at cross-purposes.

“That system creates an incredible amount of increased work and transactional costs, if for no other reason than . . . there are two separate sets of lawyers defending the health-care team writ large,” he says. “It creates inefficiencies. But it does very little and works at cross-purposes to some extent in enhancing patient safety.”

A case that framed this “bifurcated” system, says Nijjar, was Yepremian et al. v. Scarborough General Hospital et al., 1980 CanLII 1906. “It stands for the proposition that physicians ought to be considered independent contractors — not hospital staff but independent actors at the top of the . . . health-care team. That’s the decision that, for the last 40 years, has been relied upon for this notion that doctors can’t be considered staff and, therefore, have to be independently represented.”

When Ontario’s Court of Appeal considered that case, says Embury, the argument was made that the hospital should be responsible for the negligent actions of the doctor that were found to have occurred at trial. The court analyzed how care was provided; a patient gets to choose their doctor, providing some basis to look at the doctor’s liability separately.

But, says Embury, “The provision of health care has changed dramatically between 1980 and today. Today, if you go into a hospital, there’s a more team-based approach,” technologies and more interventions that can be done. “With that comes, presumably, a health-care team that is communicating [with each other] to promote and protect patients’ health-care needs. When that fails, it’s no longer a case of saying the patient picked their own doctors.”

When adverse effects occur in hospitals today, he says, they are very often the result of a team failure such as a communication error. Yet the liability system is not set up to examine the event from a holistic perspective, says Nijjar, but rather, “what individual person did what individual thing to cause what individual result?”

Not everyone would support an enterprise liability system, and Darryl Cruz, a partner at McCarthy Tétrault LLP in Toronto who practises on the physician defence side, says that Canada’s current medical liability system is consistent with tort law. Cruz is also a member of the Holland Access to Justice in Medical Malpractice Group, which promotes reforms in medical malpractice and was one of the organizations consulted by the Goudge inquiry.

The enterprise liability system would potentially be a simpler, quicker system for plaintiff-side lawyers, as plaintiffs could potentially get cases to court faster and would need only sue the hospital. But that doesn’t mean shortcuts should be taken to “make proof easier” by avoiding tough questions and simplifying the process, says Cruz. Fault in the provision of care must be demonstrated for liability to be found, and “if you’re alleging fault, you have to figure out where the fault lies.

“Access to justice is an important concept . . .  but, equally, we have very complicated [medical] cases,” Cruz says. “The system needs to sort out difficult questions of legal standards and causation. I think our current tort system is very effective in that,” he adds. Although every system could be improved, Canada’s medical liability system is “a good system that evaluates things that are complicated in a fair way.”