How Canadian Law Discourages Patients from Suing Physicians for Medical Malpractice

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When the physician you entrust with the health and wellbeing of you and your family causes harm instead, the usual remedy is to seek compensation through the courts in a medical malpractice or negligence case. Medical errors account for up to 43,000 deaths each year across Canada, but only 4,524 lawsuits were filed by patients over a five-year period according to the results of one study, and 3,089 of those claims were dismissed by the courts or abandoned by the victims.

Of the remaining cases, only 116 resulted in damages being awarded to the victim with the average amount of the award being only $117,000. These statistics lend support to the argument that the law discourages patients from suing when medial errors and mistakes cause them to suffer harm.

Medical malpractice insurance system in Canada

Doctors in Canada are insured against medical malpractice claims through the government- subsidized Canadian Medical Protective Association. Doctors pay a fee for the insurance based upon where a doctor is located and the type of medicine practiced. Fees are not based on a physician’s claims experience.

Provincial governments subsidize the system by paying a portion of the fees paid by doctors for the insurance. Ontario, for example, reimburses doctors for up to 83 percent of the fees they pay. In contrast, doctors in the U.S. purchase their insurance through private companies without receiving subsidies from the government for the premiums, and premiums are based, in part, on the prior claims history of the doctor.

Critics of the CMPA claim it is overly aggressive in its defence of physicians sued for medical malpractice. Its defence strategy has been accused of focusing on protecting the reputation of doctors by rejecting settlements at the expense of the victims of medical errors. The law making the losing party responsible for the legal fees incurred by the party coming out on top in a lawsuit has been exploited by the CMPA to discourage people with legitimate claims from pursuing them for fear of the cost if they lose.

Proving negligence against health care professionals

Proving medical malpractice can be difficult because a patient could receive the best care possible and still not recover from an injury or illness. A bad result does not necessarily mean a doctor committed malpractice. Negligence in the delivery of medical care occurs when a physician fails to perform to the standards expected of the profession and causes injury or harm to a patient. Examples of physician negligence include:

• Failure to treat a patient
• Mistakes in diagnosis
• Delayed diagnosis
• Failure to refer a patient to a specialist
• Providing substandard care
• Errors in prescribing or administering medications

When medical errors by a doctor take place in a hospital, the facility could be held liable for harm to its patients caused by its physicians.

Placing a cap on damages

Patients have an additional hurtle to overcome if they want to pursue a medical malpractice claim against a physician. The courts have placed caps on the maximum damages recoverable against a doctor. General damages, which include compensation for pain and suffering, are capped at $300,000. Punitive damages are rarely awarded in cases that do not involve malice or truly reprehensible conduct on the part of a medical provider.

Medical malpractice lawyers can help

If you are injured due to the medical malpractice or negligence of a physician or hospital, the personal injury lawyers at Diamond and Diamond might be able to help you recover compensation. We have offices located throughout Ontario staffed by professionals to assist you. Call our 24/7 personal injury hotline at 1-800-567-HURT or visit our website to speak to one of our team members. We offer free consultations and case evaluations.