Complexities of medical malpractice litigation mean uphill battle for plaintiffs and their lawyers

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Medical malpractice litigation is complex, difficult and expensive and because of those factors, plaintiffs end up losing more cases than they win, says Richard Bogoroch, founder and managing partner of Bogoroch & Associates LLP. Plaintiff’s counsel must have the resources, ability, skill and experience to effectively litigate in this area of practice.

Its complexity arises from the requirement to establish a breach of the standard of care by the health-care provider and a causal connection between the breach and the injury. Even if the plaintiff is successful at trial in establishing a breach of the standard of care, the “but for” test enunciated by the Supreme Court of Canada in Clements v. Clements makes it uncertain whether the case will succeed. Many cases are fought not so much on the issue of standard, but on the question of causation, Bogoroch says, adding “‘but for’ causation is difficult at times to understand and even more difficult at times to apply.”

It’s also an understatement to say medical malpractice cases are very expensive to run. Unlike traditional approaches to insurance litigation in which casualty insurers seek to resolve cases on an economic basis based on a risk analysis, the situation is quite different in medical malpractice litigation. The Canadian Medical Protective Association defends physicians across the country and doesn’t negotiate or resolve cases on the basis of the cost of litigation or the economic risk, but only if it’s determined the physician will more likely than not lose at trial. If the CMPA believes the case is defensible, they’ll proceed to trial, and depending on the nature of the case, disbursements can run into the hundreds of thousands of dollars.

“The paradigm for medical malpractice results in a practice area that makes it difficult and expensive for plaintiffs to pursue these cases,” Bogoroch says. “Every case that proceeds to trial is an example of access to justice writ large.”

Firms in this area of practice must have a discerning eye when it comes to which cases they take on. Bogoroch & Associates marries the skill and experience of its lawyers with a disciplined approach to managing cases. The firm proceeds to litigate only when persuaded that a case is meritorious and worth proceeding to at least the examinations for discovery, which is often required in order for the lawyers to consider the strengths of the case.

“We have an ongoing approach of considering, weighing and analyzing the evidence as part of our risk assessment,” Bogoroch says.

Much of the firm’s work has contributed to the body of case law in the field, most recently with: Surujdeo v. Melady, a 2017 Ontario Court of Appeal decision dealing with questions for a jury; Stirrett v. Cheema, a 2020 Ontario Court of Appeal decision dealing with fiduciary duty; and Boutcher v. Cha, an important case on causation that went to trial last November and was decided in December 2020.

“Medical malpractice cases are challenging, interesting and important in providing access to justice for litigants in Ontario, which is critical to our firm,” Bogoroch says, especially because there aren’t that many lawyers who handle medical malpractice cases as a dedicated part of their practices.

“If we believe a case is worth pursuing we pursue it no matter how difficult or costly it may be — at Bogoroch & Associates LLP, ensuring access to justice is our overarching objective.”

This article was produced in partnership with Bogoroch & Associates LLP.