CMPA advances “scorched earth” approach with threat to seek costs in unsuccessful claims

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Historically, if a medical malpractice plaintiff agreed not to pursue an appeal, the Canadian Medical Protective Association would not seek costs for the trial and litigation.

"There was an understanding — a trade-off,” says Rose Leto, a Partner with Neinstein Personal Injury Lawyers LLP. “The plaintiff accepted the unsuccessful verdict, and the CMPA accepted it bore the cost of its own defense.”

However, recently counsel in Alberta have reported that in unsuccessful litigation the association has begun to request costs, even in cases where the plaintiff isn’t advancing an appeal — or even before the case gets to that stage. Early on in the litigation, letters from the CMPA indicated that if unsuccessful, they will be seeking their costs.

Leto says this anecdotal evidence is obviously a concern — and says scorched earth is a fair characterization.

“We see medical malpractice as public interest litigation,” she notes. “It's in everyone's best interest that if there are problems with our health care system, that they be addressed and rectified. That’s the quintessential reason we have tort law — so that we make the system better for those that come next.”

Because Canada’s health care is publicly funded, some have argued that a significant portion of the physicians’ CMPA fees are actually paid with taxpayer dollars. Over the years, much has been written about OHIP essentially subsidizing the CMPA, with some estimates placing it as high as 81% of the fees. Yet the CMPA has a stringent approach to advancing their defense, often even with claims that have merit and could be resolved fairly quickly and inexpensively.

While in other types of civil litigation, the parties may be able to work together to streamline issues so as to ensure an expeditious trial or resolution, medical negligence cases tend to require that the plaintiff “prove absolutely every single element” of the claim.

"In experience, those simple steps — that acknowledgement of certain basic elements of litigation — come difficult, and they also come late in the game,” Leto says. “That forces a plaintiff to advance litigation to the doorsteps of trial, and in most cases through a trial, to get their compensation.”

Everybody wants only meritorious claims to go forward and for the CMPA to only pay out on those claims, but the concern is that “even on the very obvious and meritorious claims, the same procedures are being conducted.” If there was a more balanced approach, where necessary elements and evidence are established as expected but are settled earlier and plaintiffs were properly compensated, there would be less money needed to mount defenses and more funding for health care and other initiatives.

The CMPA’s goal to protect the integrity of the profession is a proper one, Leto notes, but “the manner in which they achieve that goal is something that most medical malpractice lawyers have an issue with.” While doctors deserve to be well-defended, plaintiffs also deserve to have good advocates and though not yet widespread, the step of requesting costs is likely being advanced in line with that scorched earth approach that will ultimately reduce the number of plaintiffs that have access to justice.

As it stands right now, the plaintiff already has to find a lawyer who sees their claim as having a high enough value to justify the risk of going up against the CMPA with its deep pockets, as the resource divide between a personal injury firm and the association is significant. Leto says lawyers “see it as almost a duty to advocate on behalf of medical malpractice plaintiffs” in the face of the potential new threat of a cost demand. Judging by “the MO of the CMPA in advancing litigation that does exist, this additional step seems likely to reduce the number of plaintiffs who proceed with litigation.”

Leto says the goal right now is awareness and education both of the courts and the public. If these claims are made before a judge, medical malpractice lawyers will depend on public policy consideration and public interest litigation arguments and ask the judiciary to avoid the cost orders, considering the impact and the prejudice to the plaintiffs themselves.

“We have to step up our game,” Leto says. “We’re going to have to put our heads together to come up with more resources to be able to mount these claims successfully and reduce the risk to our clients.”