Challenging disparity in medical malpractice

“It’s rather startling that in six provinces and three territories there wasn’t a single verdict in favour of the plaintiff in 2016,” says Gary Wagner of Wagners, a personal injury law firm based in Halifax that does medical malpractice cases in the four Atlantic provinces and some in Alberta.

“We see more and more the disparity between Ontario awards reported and those that appear across the rest of the country,” he says, pointing to information from the Canadian Medical Protective Association from 2016 that indicate there wasn’t a single verdict in favour of a medical malpractice plaintiff in Saskatchewan, Manitoba and Atlantic Canada or the Territories.

In fact, some PI firms, such as Litwiniuk & Company in Calgary, stepped away from medical malpractice three years ago. “We haven’t found it’s a beneficial practice area for us,” says Fred Litwiniuk, chief operation officer of the firm. “We have found a lot of the time the benefit doesn’t always outweigh the risk for the clients here. Finding the right cases to take to trial was a difficult endeavour.”

Some personal injury lawyers have been tracking the significant discrepancy in damages awards between provinces. Sonia Nijjar of Neinstein LLP says the firm, which represents plaintiffs only, has recent experience running cases in Alberta, British Columbia and Nova Scotia, and it has noted a “fairly obvious discrepancy” in the way that damages awards are calculated and awarded.

Nijjar’s work is primarily focused on medical malpractice and, in particular, the firm does a lot of work in the area of birth injuries. The firm hasn’t obtained any judgments in Alberta, but it has encountered “a discourse about damages” that is very different than what has been prosecuted in Ontario.

Nijjar recently ran a report using a legal research tool and, in the last 10 years, a summary table for Alberta compared to Ontario for severe brain damage cases showed the largest award reported in Alberta was $1.74 million for future care costs, which takes up 90 per cent of all judgments. The same query for Ontario showed the largest future care costs awarded was $10.9 million.

Also, the damages awards for compromised infants in Alberta are much lower than the average award for the same type of injury in Ontario. “We are of the view that there is no real principled reason for such a large discrepancy other than a difference in how damages cases are being advanced by lawyers in the different provinces, which is in turn impacting different judicial attitudes and perceptions about what is reasonable and what is not,” says Nijjar.

“Given that the Supreme Court of Canada has ruled on these issues in a way that ought to be consistently applied across the country, it gives rise to an interesting discussion,” she notes.

Nijjar is referring to the trilogy of cases the Supreme Court of Canada decided in 1978 — Andrews v. Grand & Toy Alberta Ltd., Thornton v. Prince George School Board and Arnold v. Teno — one each in Alberta, B.C. and Ontario — all involving catastrophic injuries.

The SCC imposed a cap of $100,000 (as of 1978) on non-pecuniary damages. The decision was made on the basis that there should be a limit to the amount of compensation awarded for pain and suffering. As of early 2013, the cap was approaching $350,000 due to inflation.

The principles the SCC set out upon which damages are to be assessed should be applied the same across the country, says Richard Halpern, partner with Thomson Rogers in Toronto, who does medical malpractice work across Canada. However, Halpern says he sees a difference. “There’s no question about it.

“The Supreme Court of Canada described the principles upon which damages are to be assessed across the country, and the principles are as valid today as they were in 1978,” he says. “But the damages awarded in Ontario are significantly higher than any other province in the country. The explanation for that though is not clear.”

Halpern estimates that there are about 1,000 medical malpractice cases across the country each year, out of which one-third end up being dismissed. Many of the remaining ones are settled or for those that go to trial, the doctors win more than the patients, yet there are “hundreds of thousands of errors a year,” he says.

Nijjar says her concern is that clients in Alberta who are injured as a result of potential negligence are being short-changed. “For what reason? Because of precedent? But what does precedent mean when it comes to future care costs? Every case is supposed to be judged on its unique facts.”

Neinsteins is trying to change some of that culture when it comes to prosecuting cases in Alberta. “We’re running them the way we run cases in Ontario, which is with the same type of assessment, same type of experts who are evaluating our client’s damages and we’re coming up with the same numbers,” she says. “But those numbers are just not being well received in Alberta.”

In Alberta, Nijjar says, it seems that $5 million is “a ton of money,” whereas in Ontario, the way cases have been advanced has been different. “I have a feeling it has more to do with judicial attitude than it really is about anything else.”

She says B.C. cases can have the “lowest valuation of damages as well as the highest” without any real explanation for the differences in the cases.

“I think there, the tendency to appeal cases is much higher than in the rest of the provinces, so overturned decisions or adjusted damages calculations are more prevalent, which may explain the differences. But, in Alberta, we’re just seeing it’s consistently low,” she says.

Neinstein is trying to take some of the principles set out by the SCC that have been lost and bring them to the forefront. “We’re trying to say, ‘This is not what the Supreme Court of Canada meant when they said “reasonable.”’ We’re bringing those arguments back and not just accepting discourse on reasonableness based on what the defendants’ lawyers are saying,” she says.

They are also looking at the idea of “sociology” behind care.

“If a family is providing care, it means the plaintiff isn’t entitled for the private costs and this particularly pertains to children. Sure, every parent has to get up in the night to get a child a drink of water, but what not every parent does in the night is get up to make sure their child isn’t asphyxiating as a result of lack of suctioning because they can’t monitor their own airway. We’ve been attacking that from the perspective that this is not what the family unit is meant for,” she says.

While the Supreme Court put the cap on damages for pain and suffering, it did allow full compensation for economic losses such as income losses and losses for care. The basis has to be reasonable and justified and fair, but it is not dependent on the ability of the defendant to pay. Nijjar says it has to be a measure of what’s fair to both parties.

In Canada, in cases of catastrophic injury and medical malpractice, the care models that courts have used in provinces outside of Ontario have been models that have attempted to lower the losses — for example, in-home immigrant care workers as opposed to hiring those services outside the home through agencies where the expense is far greater.

“I think there is a compelling case for courts to award agency rates and not these in-home providers,” Halpern says. “I think the attention has been on the medical side and liability and people not paying enough attention to the care model they put forward at trial or judges being very reluctant in cases outside Ontario to award multi-million-dollar awards,” he says.

The other notion occurring in these cases is do parents have to look after disabled adult children? Are they entitled to compensation for the value of care they provide? The law says that, yes, they are entitled, but cases that have considered it have been all over the map and, outside of Ontario, there are cases where judges have not awarded compensation to the parents providing extraordinary care to their children. Halpern says that is a wrong assumption.

“Maybe it’s time we brought the matter back before the Supreme Court of Canada because of this discrepancy we see in the value of cases across the country. Having said that, I’m not saying Ontario is right — maybe it’s too high,” he says.

Halpern says judges “give lip service” to the SCC trilogy of cases, but they haven’t dealt with the principles and the concepts adequately. One example is the notion that there is no requirement on the part of family members to provide extraordinary care for no compensation.

He says it’s also a function of lawyers not being as diligent as they can in presenting the damages part of these cases. “These cases are so challenging to win on liability and proving the medical part of it that sometimes we lose track of the damages, and I think the way to fix it is to get a consistent application of the principles from the trilogy in all cases across the country. It just hasn’t happened.”

Wagner says there are very few lawyers practising medical malpractice in Altantic Canada — “maybe a handful” on a regular basis  — and a lot of it has to do with the cost of litigation.

The cost of litigation in a birth trauma case in Ontario might cost between $250,000 and $500,000 and the awards generally run in the range of $8 million to $15 million. In Atlantic Canada or other provinces without a strong culture in medical malpractice litigation, those awards can be in the range of $2 million to $6 million.

“The disparity can be quite different and yet on the disbursement side a properly prepared piece of litigation brought to trial still costs a quarter to half a million dollars,” Wagner says.

The costs, he says, aren’t that different because the experts are coming from central Canada and so the cost of litigation is the same. Then there are the provinces such as New Brunswick without a right to a jury. “It’s a difficult place to plea a medical malpractice case because the judiciary in their decision-making has typically taken a very conservative line,” he says.

“In New Brunswick, the defence bar proudly says they can beat every case,” says Wagner. “There was a recent birth trauma case that was very tragic and the court decided to follow the experts of the defendants, which is typical.”

In Nova Scotia, there is the ability to have jury trials, so all medical malpractice cases are done before juries.

Wagner says the causation question needs to be further addressed by the Supreme Court. Some PI lawyers say the court has created confusion in recent statements on causation.

“One of the big issues is causation — at least 70 per cent of cases are not over the breach of standard of care but over causation questions. When dealing with causation, with the way our medical system is organized where a number of potential players [are] involved in the treatment of an individual, it becomes very problematic in terms of dealing and meeting the threshold of a ‘but for’ test.”

Wagner says the SCC should be setting some benchmarks for quantification of cases. One of the big issues is the pain and suffering cap where people are horribly injured with no prospect of recovery and the maximum they can get is $350,000.

“Frankly, in this day and age, it’s an insult,” he says.