UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Medical malpractice litigation in Canada Macdonald, Alastair Brodie 1977

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Notice for Google Chrome users:
If you are having trouble viewing or searching the PDF with Google Chrome, please download it here instead.

Item Metadata

Download

Media
831-UBC_1977_A6_7 M32_2.pdf [ 6.19MB ]
Metadata
JSON: 831-1.0094045.json
JSON-LD: 831-1.0094045-ld.json
RDF/XML (Pretty): 831-1.0094045-rdf.xml
RDF/JSON: 831-1.0094045-rdf.json
Turtle: 831-1.0094045-turtle.txt
N-Triples: 831-1.0094045-rdf-ntriples.txt
Original Record: 831-1.0094045-source.json
Full Text
831-1.0094045-fulltext.txt
Citation
831-1.0094045.ris

Full Text

MEDICAL MALPRACTICE LITIGATION IN CANADA by ALASTAIR BRODIE MACDONALD B.Sc, M c G i l l University, 1971 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE i n THE FACULTY OF GRADUATE STUDIES (Department of Health Care & Epidemiology) We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA August, 1977 A l a s t a i r Brodie Macdonald, 1977 In presenting t h i s thesis i n p a r t i a l f u l f i l l m e n t of the requirements f o r an advanced degree at the U n i v e r s i t y of B r i t i s h Columbia, I agree that the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r reference and study. I f u r t h e r agree that permission f o r extensive copying of t h i s thesis f o r s c h o l a r l y purposes may be granted by the Head of my department or h i s respresentative. I t i s understood that copying or p u b l i c a t i o n of t h i s t hesis f o r f i n a n c i a l gain s h a l l not be allowed without my w r i t t e n permission. i ABSTRACT The purpose of t h i s study i s twofold: 1. to present a d e s c r i p t i v e analysis of the current state of medical malpractice l i t i g a t i o n i n Canada; and 2. to present and discuss possible a l t e r n a t i v e s to medical malpractice l i t i g a t i o n . I t i s a d e s c r i p t i v e study u t i l i z i n g information obtained from ques-tionnaires, interviews, annual reports and other documents pertaining to medical malpractice l i t i g a t i o n . The study shows that the purpose of medical malpractice l i t i g a t i o n i s the assignment of the r e s p o n s i b i l i t y f o r the carrying of costs of losses and i n j u r i e s r e s u l t i n g from medical treatment. I t also plays a number of secondary r o l e s , the most notable being a mechanism by which patients may hold doctors accountable for t h e i r professional behaviour. In t h i s respect, medical malpractice l i t i g a t i o n i s unique amongst the other mechanisms of ac c o u n t a b i l i t y i n that i t provides the only means by which the patient may obtain compensation for losses incurred as a r e s u l t of medical treatment. Medical malpractice claims may be submitted under two causes of action: "negligence" and "trespass to the person". A cause of action of "negligence" requires that the p l a i n t i f f (patient) prove that h i s or her loss i s the r e s u l t of a breach of a "duty of care" by the defendant (doctor). In order to prove "trespass to the person", the p l a i n t i f f must show that no consent or an i n v a l i d consent was obtained by the defendant. An examination of the process of medical malpractice l i t i g a t i o n i n Canada indicates that b a r r i e r s e x i s t to malpractice action. B a r r i e r s viewed as being unacceptable are: f i n a n c i a l cost, lack of knowledge and i i confidence i n the l e g a l system, and lack of l e g a l j u s t i f i c a t i o n . The unacceptable r a t i n g of t h i s l a t t e r b a r r i e r i s due to a number of factors which are f e l t to have an additive impact against the p l a i n t i f f . In view of the apparently large number of medical accidents; the fa c t that many of these accidents do not f a l l within the guidelines of "negligence" and "trespass to the person"; and the f a c t that strong bar-r i e r s e x i s t to the successful completion of e l i g i b l e malpractice claims, medical malpractice l i t i g a t i o n i s viewed as an inadequate means of compensating patients for t h e i r medically caused losses. In addition, when using Calabresi's concept of "accident cost reduction", medical mal-pr a c t i c e l i t i g a t i o n i s found to be i n e f f e c t i v e i n reducing the costs of medical accidents."*" Three a l t e r n a t i v e s to l i t i g a t i o n are examined: s o c i a l insurance, no-fault insurance, and a scheme developed by Calabresi. Calabresi's scheme i s found to be most e f f e c t i v e i n meeting the prescribed goals of the system. Analysis of past trends i n the volume and cost of medical malpractice l i t i g a t i o n i n Canada reveal that, accounting for the number of physicians at r i s k , there has been on average a 7% increase i n the volume of new claims over the l a s t 15 years. On the other hand, the considerable increase i n costs can be explained by the increase i n the number of cases i n process and by i n f l a t i o n f actors. Since only 35% of the costs may be a t t r i b u t e d to awards and settlements, the analysis suggests that costs w i l l continue 1Guido Calabresi, "Medical Malpractice, Closing the C i r c l e , " UNIVERSITY OF TORONTO LAW JOURNAL, forthcoming. i i i to increase i f the volume of new claims continues to increase. O v e r a l l , the study suggests that Calabresi's scheme for the p a r t i a l compensation of medical accident costs should be tested through a p i l o t project. In addition, a number of suggestions for reforming the process of medical malpractice l i t i g a t i o n are proposed. i v TABLE OF CONTENTS CHAPTER I MEDICAL MALPRACTICE LITIGATION IN CANADA -THE STUDY 1. Introduction The Purpose of the Study The Approach of the Study II THE SYSTEM OF MEDICAL ACCOUNTABILITY -AN OVERVIEW 9. The Doctor-Patient Encounter and Patient Complaints Patient Directed Accountability Peer Directed Accountability S o c i a l Accountability Conclusions III THE PURPOSE AND FUNCTIONS OF MEDICAL MALPRACTICE The Nature, Purpose and Functions of the Law of Torts The Nature and Purpose of Medical Malpractice L i t i g a t i o n Other Functions served by Medical Malpractice L i t i g a t i o n Conclusions Negligence The Negligent Doctor Medical Trespass to the Person Conclusions V THE PROCESS AND EXTENT OF MEDICAL MALPRACTICE LITIGATION IN CANADA 64. The Process of Medical Malpractice L i t i g a t i o n The Extent and Cost of Medical Malpractice L i t i g a t i o n i n Canada VI ALTERNATIVES TO MEDICAL MALPRACTICE LITIGATION. . . . 88. LITIGATION 30. IV MEDICAL MALPRACTICE DEFINED 41. Accident Cost Reduction Medical Accident Cost Reduction Conclusions V CHAPTER VII CONCLUSIONS . . . . . . . . . . . . . . 110. Implications of Medical Malpractice L i t i g a t i o n on Planning Conclusions of the Study BIBLIOGRAPHY 117. APPENDICES 123. v i LIST OF TABLES I P r o f i l e of Complaints i n N.H.S. by Category of Complaint . • . .' 11. II Outline of Cases Handled by the D i s c i p l i n e Committee of the College of Physicians and Surgeons of Ontario f o r the period of June, 1973, to February, 1977 24. I l l New Claims made against Members of the Canadian Medical Protective Association for the Years 1961-1975 77. IV New Claims per 1,000 Doctors at Risk made against Members of the Canadian Medical Protective Association f o r the Years 1961-1975 79. V The Percentage Increase i n New Claims Each Year that i s Unexplained by the Increase i n the Number of Doctors at Risk, 1961-1975 80. VI Projected Annual Number of New Claims and New Claims per 1,000 Doctors, 1975-1990 81. VII Total Costs of the Canadian Medical Protective Association, 1961-1975 82. VIII T o t a l Costs of the Canadian Medical Protective Association, i n 1961 Do l l a r s , 1961-1975 83. IX Average Cost, i n 1961 Doll a r s per Claim i n Process, 1961-1975 . . . 84. X Breakdown of T o t a l Costs of the Canadian Medical Protective Association, 1961-1975 85. XI Goals or At t r i b u t e s of a System of Medical Accident Compensation . 101. v i i LIST OF ILLUSTRATIONS Flow Chart of the Process of Medical Accountability .•• . . Flow Chart of the Process of a Medical Malpractice Suit v i i i ACKNOWLEDGEMENTS Writing a thesis 1,500 miles d i s t a n t from the University of B r i t i s h Columbia has been a d i f f i c u l t task. I would therefore l i k e to thank my thesis committee for t h e i r help and consideration. In p a r t i c u l a r , I would l i k e to express my appreciation to Dr. Bernard Dickens, who s k i l l -f u l l y guided me through the complexities of the "law of t o r t s " . F i n a l l y , I would l i k e to thank my wife, Charlene, who not only endured f i v e years of f r u s t r a t i o n while I wrote the thesis but who also suffered through the thankless task of typing the f i n a l copy. 1 CHAPTER I MEDICAL MALPRACTICE LITIGATION IN CANADA - THE STUDY* Introduction The extreme imbalance between the power and authority of the provider (the doctor) and that of the consumer (the patient) of medical services, 1 2 has been well established. ' This power and authority of the physician stems from both the technical and esoteric nature of medical knowledge as well as from the emotional e f f e c t s engendered by the l i f e and death implications of the administration of t h i s knowledge. These two factors make i t d i f f i c u l t for the patient, not only to make r a t i o n a l decisions concerning the nature of the care he i s to receive, but also to assess the q u a l i t y of that care. The patient, therefore, i s generally at the mercy of the doctor. The same factors are also responsible for the p o s i t i o n of power that the profession of medicine (as a group) occupies i n society. In Canada, medicine has been granted monopolistic control over i t s p r a c t i c e through i t s power to set and enforce standards for entry to the profession as well as through i t s d i s c i p l i n a r y powers. Presumably, these powers have been granted i n the b e l i e f that doctors, and only doctors, are able to set medical standards and are able to judge the c l i n i c a l c a p a b i l i t i e s 3 of other doctors. Medicine, therefore, possesses two forms of power which emanate *Footnotes follow each chapter 2 l a r g e l y from the same base: the technical and esoteric nature of medical knowledge. K l e i n distinguishes between these forms of power as follows: "there i s power i n the sense of manipulating the system i n which we l i v e : the power to shape our environment i n the widest sense, p o l i t i c a l , s o c i a l and economic. Equally, though, there i s power i n the sense of manipu-l a t i n g the i n d i v i d u a l within the system; the power to shape the way the system deals with people who come i n contact with i t " 4 Given that the profession of medicine and the i n d i v i d u a l p r a c t i t i o n e r have been granted s i g n i f i c a n t control over the pra c t i c e of medicine and over the medical treatment of the patient r e s p e c t i v e l y , how does society ensure that these s i g n i f i c a n t powers are not abused? There e x i s t s i n Canada, a number of d i f f e r e n t , but l a r g e l y unrelated mechanisms, by which doctors may be held accountable. These include such options as withholding fees, changing doctors, d i s c i p l i n a r y proceedings of l i c e n s i n g bodies and medical malpractice l i t i g a t i o n . For the purpose of t h i s study, a l l such mechanisms of physician a c c o u n t a b i l i t y w i l l be considered components of a system to be known as the "system of medical acc o u n t a b i l i t y " . Figure 1 presents a s i m p l i s t i c o u t l i n e of the process of medical ac c o u n t a b i l i t y . Although by no means comprehensive, i t does provide a useful framework for examining the system. The flow chart suggests that problems requiring p r a c t i t i o n e r ac-c o u n t a b i l i t y flow from the doctor-patient encounter. The i d e a l outcome of t h i s encounter would be the optimal treatment of the patient given the patient's condition, the resources a v a i l a b l e and the state of technology, In addition, f o r the outcome to be t r u l y i d e a l , the patient should be s a t i s f i e d with the encounter. The flow chart looks at the opposite s i t u -3 Figure 1- Flow Chart of the Process of Medical Accountability 4 when patient d i s s a t i s f a c t i o n occurs. D i s s a t i s f a c t i o n provides the basic ingredient f o r the entry of the patient into the medical a c c o u n t a b i l i t y system. C l e a r l y , the patient who i s s a t i s f i e d with the encounter has no grounds or motivation to hold h i s or her doctor accountable. On the other hand, the d i s s a t i s f i e d patient may have reason for holding the doctor accountable but may decide not to pursue any further action. Entry into the medical a c c o u n t a b i l i t y system, therefore, requires not only that the patient be d i s s a t i s f i e d with some aspect of the encounter with h i s or her physician, but also that the patient be aware of, and be w i l l i n g to i n i t i a t e , further a c t i o n . Patients who decide to take further action have a number of a l t e r -natives from which to choose. They may take personal action such as changing doctors or withholding payment of fees. On the other hand, they may i n i t i a t e proceedings of peer review by re l a y i n g a complaint to the medical l i c e n s i n g agency or to the h o s p i t a l where the doctor i s appointed. These two d i r e c t i o n s have been l a b e l l e d on the flow chart as mechanisms of "patient directed a c c o u n t a b i l i t y " and "peer dir e c t e d a c c o u n t a b i l i t y " r e s p e c t i v e l y . The f i n a l and most extreme option open to the patient i s to sue the doctor by i n i t i a t i n g l i t i g a t i o n proceedings. As w i l l l a t e r become apparent, l i t i g a t i o n may be viewed as a mechanism of " s o c i a l a c c o u n t a b i l i t y " . Although i t would be desirable to study the complete system of medical acc o u n t a b i l i t y , such a study, i f i t were done we l l , would be beyond the scope of a Master's t h e s i s . The i n t e n t i o n i n t h i s study, therefore, i s to examine, i n depth, one mechanism of medical a c c o u n t a b i l i t y , namely medical malpractice l i t i g a t i o n . 5 The Purpose of the Study The purpose of t h i s study i s twofold: 1. to present a d e s c r i p t i v e analysis of the current state of medical malpractice l i t i g a t i o n i n Canada; 2. to present and discuss possible a l t e r n a t i v e s to medical malpractice l i t i g a t i o n i n Canada; The Approach of the Study The study w i l l d e s c r i p t i v e , using information obtained from ques-tionnaires, interviews, annual reports and other documents pertaining to medical malpractice l i t i g a t i o n . Due to the focus of the study on physician a c c o u n t a b i l i t y , the study w i l l concentrate on medical malpractice l i t i g a t i o n as i t pertains to doctors. Although t h i s e f f e c t i v e l y excludes other sectors of the health care system from the study, i t i s hoped that the r e s u l t s of the study w i l l be applicable to the whole health care system. 1. An Overview of the System of Medical Accountability i n Canada Before focusing on medical malpractice l i t i g a t i o n , i t w i l l be useful to get an overview of the complete system of medical a c c o u n t a b i l i t y . The approach to developing t h i s overview w i l l be to follow the flow chart represented i n Figure 1 . There w i l l therefore be: (a) an examination of the nature and dynamics of the doctor-patient r e l a t i o n s h i p including an examination of the causes of patient d i s -s a t i s f a c t i o n ; (b) an o u t l i n e and discussion of mechanisms of patient directed a c c o u n t a b i l i t y ; (c) an o u t l i n e and discussion of mechanisms of peer directed a c c o u ntability; and 6 (d) an o u t l i n e and discussion of mechanisms of s o c i a l a c c o u n t a b i l i t y 2. Descriptive Analysis of Medical Malpractice L i t i g a t i o n i n Canada This section w i l l comprise the bulk of the study. I t w i l l be divided into the following components: (a) The Purpose and E f f e c t s of Medical Malpractice L i t i g a t i o n As a process of law, medical malpractice l i t i g a t i o n may be seen as serving one or several s o c i a l purposes. I t w i l l , therefore, be examined within the l a r g e r context of the "law of t o r t s " and the p r e v a i l i n g argu-ments concerning the purpose of the "law of t o r t s " w i l l be presented with s p e c i f i c reference to medical malpractice l i t i g a t i o n . Although medical malpractice l i t i g a t i o n may be seen as having an intended s o c i a l function or purpose, i t may also be seen as having un-intended functions or e f f e c t s . These a d d i t i o n a l implications w i l l be presented and discussed. (b) Defining Medical Malpractice An o u t l i n e of the court's current d e f i n i t i o n of what behaviour comprises medical malpractice w i l l , he presented. (c) The Process of Medical Malpractice L i t i g a t i o n i n Canada Every doctor-patient encounter has the p o t e n t i a l to r e s u l t i n a medical malpractice s u i t or claim. The process by which t h i s action develops w i l l be examined with the assistance of a flow chart. P a r t i c u l a r emphasis w i l l be on determining and examining p o t e n t i a l b a r r i e r s to '.. l i t i g a t i o n . I t should be noted that there i s no i n t e n t i o n to examine the technical l e g a l procedures and process. This section w i l l be concluded with an examination of the extent 7 of medical malpractice l i t i g a t i o n i n Canada. Past trends i n the amount and cost of l i t i g a t i o n w i l l be examined using data c o l l e c t e d by the Canadian Medical Protective Association. Allowance w i l l be made for variables such as number of doctors at r i s k and i n f l a t i o n f a c t o r s . 3. A l t e r n a t i v e s to Medical Malpractice L i t i g a t i o n i n Canada The preceding section w i l l have c l e a r l y outlined the functions that medical malpractice l i t i g a t i o n serves as well as apparent f a i l i n g s i n the system. Medical malpractice l i t i g a t i o n w i l l , therefore, provide a useful benchmark against which possible a l t e r n a t i v e s may be compared. The ultimate a l t e r n a t i v e to medical malpractice l i t i g a t i o n i s the elimination of behaviour by doctors which could be construed as medical malpractice. Processes by which t h i s could be achieved w i l l be discussed. Alternatives to the process of medical malpractice l i t i g a t i o n w i l l then be presented and compared. An example of such an a l t e r n a t i v e i s a scheme of medical compensation s i m i l a r to worker's compensation plans. 8 FOOTNOTES - CHAPTER I 1. E l i o t F r e i d s o n , P r o f e s s i o n a l Dominance, (New Y o r k : A t h e r t o n P r e s s , 1970). 2. R u d o l p h K l e i n , C o m p l a i n t s A g a i n s t D o c t o r s , (Kent:The Stanhope P r e s s , 1973). 3. J.W. Gr o v e , O r g a n i z e d M e d i c i n e i n O n t a r i o , ( T o r o n t o : Q u e e n s P r i n t e r , 1969), p. 12. 4. K l e i n , C o m p l a i n t s A g a i n s t D o c t o r s , p. 2. 9 CHAPTER II THE SYSTEM OF MEDICAL ACCOUNTABILITY - AN OVERVIEW The Doctor-Patient Encounter and Patient Complaints The r e l a t i o n s h i p of the patient to the doctor has been characterized as one of dependence."*" The model suggests that the patient i s exceedingly l i m i t e d i n h i s a b i l i t y to assess h i s health problems and to choose ap-propriate resources to handle those problems. Consequently, the doctor, as c r i b i n g to a humanitarian code of et h i c s , acts on behalf and i n the best i n t e r e s t s of the patient to ensure that he receives the necessary medical care and treatment. The r e l a t i o n s h i p , however, i s not t o t a l l y one-sided. The doctor, i n most instances, i s an entrepreneur who's l i v e l i h o o d depends on h i s a b i l i t y to a t t r a c t and maintain a continuing c l i e n t e l e . I f he i s to be successful, a doctor must not only minister to the medical needs of h i s patients, but also s a t i s f y them. Unfortunately, these two goals of optimal medical treatment and patient s a t i s f a c t i o n are not always congruent. I t i s apparent that the physician and the patient view the doctor-patient encounter from d i f f e r i n g perspectives. The doctor "looking from his professional vantage point, preserves h i s detachment by seeing the patient as a case to which he applies the general rules and categories 2 learned during h i s protracted professional t r a i n i n g " . His primary concern i s with the elimination of the patient's medical complaint and, consequently, h i s o r i e n t a t i o n i s towards the o v e r a l l medical outcome 10 of the encounter. The patient on the other hand, i s personally and emotionally involved i n what happens. He not only requires medical t r e a t -ment but also understanding, comfort, support and an explanation of h i s medical problem and i t s proposed treatment. Although the patient i s also concerned with the outcome of his medical encounter, h i s focus tends to be on the process of the encounter. I t would therefore be expected, 3 as suggested by Donabedian, that patients would judge and evaluate physician performance p r i m a r i l y by process c r i t e r i a rather than outcome c r i t e r i a . Friedson i n h i s study of "Patients' Views of Medical P r a c t i c e " , found that patients used two i n t e r l o c k i n g c r i t e r i a to evaluate health services: " F i r s t they f e l t , good medical care requires technical competence. Second they f e l t , good medical care requires an i n t e r e s t i n the patient so that he obtains not only emotional s a t i s f a c t i o n from the p r a c t i t i o n e r , but also the impression that^competence i s exercised i n more than a routine way". Although i t might be expected that outcome c r i t e r i a would be important i n patient's evaluation of t e c h n i c a l competence, process c r i t e r i a were j u s t as, or more important. For example, he found that the way that hi s t o r y - t a k i n g and physical examinations were performed, played a major r o l e i n patients' judgements of technical competence. Judgements of " i n t e r e s t i n the patient", as might be expected were based p r i m a r i l y on process c r i t e r i a . ' I t i s i n t e r e s t i n g to note that "questions of competence were rai s e d f a r l e s s than questions of i n t e r e s t " . ^ This f i n d i n g coincides with that of K l e i n i n h i s study of "Complaints Against Doctors" i n Great B r i t a i n . ^ Table I i s a compilation of his r e s u l t s . I t indicates that approximately eleven per cent of the complaints received by the complaints 11 handling machinery concerned a v a r i e t y of matters, the majority concerning the q u a l i t y of the process of the encounter. Table I - P r o f i l e of Category of Complaints i n NHS by Category of Complaint % Inadequate examination or inadequate/incorrect treatment 10.9 Manners and remarks of p r a c t i t i o n e r s 19.9 Manners and remarks of reception-i s t s 14.9 F a i l u r e or delay i n home v i s i t 14.7 D i s s a t i s f a c t i o n with appointments system 7.6 F a i l u r e to r e f e r to h o s p i t a l or s p e c i a l i s t 5.3 I n a b i l i t y to contact p r a c t i t i o n e r by telephone 3.8 Other 22.9 Total 100.0 The above analysis suggests that patient complaints concerning a doctor tend to r e f e r to the content and process of the doctor-patient encounter. Complaints concerning a doctor's competence occur le s s frequently. There have been a number of studies which have tested patient s a t i s f a c t i o n . In most cases, these have reported generally high patient s a t i s f a c t i o n , although several studies have reported a lower l e v e l of 7 8 s a t i s f a c t i o n with group practices as compared to solo p r a c t i t i o n e r s . ' In a questionnaire survey of mothers' opinions, Deisher et a l found 12 that mothers were very s a t i s f i e d with doctor's.interest, examination time 9 and his willingness to receive telephone c a l l s , etc. Areas of d i s -s a t i s f a c t i o n included fees, house c a l l s and waiting time. Gerst et a l , i n the study of a government employee's medical plan, found that singles were s i g n i f i c a n t l y less s a t i s f i e d than married p a r t i c i p a n t s i n the plan."*"^ Linn found that young adults (18-25) were the least l i k e l y age group to be satisfied.'*""'" Another i n t e r e s t i n g f i n d i n g by Linn was that "Patients who were more s a t i s f i e d with l i v i n g i n t h e i r community were s i g n i f i c a n t l y more l i k e l y to be s a t i s f i e d with t h e i r medical v i s i t as w e l l as t h e i r i n t e r r a c t i o n s with doctors than patients who were les s s a t i s f i e d with t h e i r community l i f e " . Linn suggests that perhaps " d i s s a t i s f i e d patients are d i s s a t i s f i e d people and that one major determinant of patient s a t i s -f a c t i o n i s the cognitive s t y l e or personality of the patient". As suggested i n Chapter I, the requirements for entry into the system of medical accoun t a b i l i t y requires not only that the patient by d i s s a t i s f i e d with some aspect of the doctor-patient encounter, but also that the patient be aware of and be w i l l i n g to i n i t i a t e further action. Ignorance of a l t e r n a t i v e s of a c c o u n t a b i l i t y open to the patient no doubt reduces the p o t e n t i a l for action. This i s i l l u s t r a t e d by the increase i n complaints received by the College of Physicians and Surgeons of Ontario when the 12 Health D i s c i p l i n e s Act was promulgated. At that time, the new system of handling complaints was well p u b l i c i z e d throughout the province. I t i s i n t e r e s t i n g to note that the annual number of complaints received by the College since that time, has gradually reduced. One might surmise that t h i s i s i n response to the recent lack of p u b l i c i t y . The second reason for d i s s a t i s f i e d patients not entering the system of medical accoun t a b i l i t y i s the cost, both temporal and f i n a n c i a l i n 13 pursuing a complaint. In the f i n a l outcome, the decisions to pursue a complaint i s a value judgement by the patient as to whether the r e s o l u t i o n of the complaint i s worth the time, e f f o r t and money required. In t h i s section, I have b r i e f l y reviewed the nature of the doctor-patient r e l a t i o n s h i p and the causes of patient complaints. In the following sections of t h i s chapter, the various mechanisms of medical accoun t a b i l i t y w i l l be discussed. Patient Directed Accountability The patient has several options by which he may d i r e c t l y hold the doctor accountable. These include the expression of displeasure, con-fronting the doctor, withholding payment of fees, changing doctors and l i t i g a t i o n . 1. The Expression of Displeasure E a r l i e r i n t h i s chapter, i t was noted that i n most cases, the doctor i s dependent upon his patients f o r his l i v e l i h o o d . This dependence places a c e r t a i n amount of leverage i n the hands of the patient to manipulate the doctor's actions. Human behaviour provides the patient with a v a r i e t y of ways by which he may express h i s displeasure with h i s doctor's actions. Some are subtle such as raised eyebrows or a frown, others such as crying, are obvious. Use of these modes of behaviour often allows the patient to manipulate the encounter so that ultimately he i s more s a t i s f i e d with the r e s u l t . Such manoeuvres may be i n the best i n t e r e s t s of the patient and r e s u l t i n the early discovery of a major medical problem. On the other hand, i t may lead to the unnecessary u t i l i z a t i o n of laboratory tests and often unnecessary p r e s c r i b i n g of drugs. Friedson suggests 14 that the physician may i n turn manipulate the patient's expectations 13 and c i t e s the example of the prescribing of harmless placeboes. 2. Confrontation Open confrontation i s probably used infrequently compared to the subtle manipulation described above. Most often, confrontation would develop out of patient anger with the doctor. As Burstein suggests i n a guide to medical students concerning the handling of doctor-patient encounters: "Anger i n patients can be p a r t i c u l a r l y troublesome. I t can provoke a r e j e c t i o n from the doctor or other member of the health team that sends the patient on a shopping expedition, often wasting valuable p r i o r work! I t can be s u f f i c i e n t l y abrasive to the doctor to lead him to avoid the patient or, i n other Y^YS t o blur h i s judgement i n the c l i n i c a l s i t u a t i o n " . He goes on to suggest that anger may be expressed openly i n the form of a d i r e c t challenge (confrontation) or i n a disguised i n d i r e c t form. I t i s unfortunate that confrontation tends to be destructive since honest and open confrontation has the p o t e n t i a l to lead to a new under-standing between the two opponents as to each other's p o s i t i o n s . In the case of the patient, disputes based on misconception and misunderstanding would be s e t t l e d . In the case of the doctor, i t would provide useful feedback of h i s patient's perceptions of h i s p r a c t i c e . 3. Non Payment of Fees Non payment of fees provides a t r a d i t i o n a l mechanism by which the patient may hold the doctor accountable. In most instances i n Canada, doctors b i l l and receive reimbursement d i r e c t l y from t h i r d party p r o v i n c i a l health insurance agencies. The removal of the patient from the trans-action makes i t d i f f i c u l t i f not impossible for him to withhold fee 15 payment. A l e t t e r (Appendix A) requesting an o u t l i n e of how they handle requests for withholding fee payments was sent to each of the p r o v i n c i a l health insurance agencies. Despite two mailings, r e p l i e s were received from only seven of the ten provinces. The r e p l i e s u n i v e r s a l l y reported that requests to withhold fees are infrequent. In almost a l l cases, such requests are sent to the p r o v i n c i a l l i c e n s i n g bodies since the com-p l a i n t i s generally one of q u a l i t y of care. The only s i t u a t i o n s c i t e d where fees would be withheld or returned, i s where i t i s established that the doctor did not provide the service. I t i s i n t e r e s t i n g to note that l e g a l l y , the insuring agencies would not be placing themselves i n jeopardy i f they withheld payment at the request of the patient since the doctor's contract i s with the patient, not with the insuring agency.^ A number of the p r o v i n c i a l health insurance plans provide doctors with the option of either b i l l i n g the agency d i r e c t l y at the designated fee, or b i l l i n g the patient who then receives p a r t i a l reimbursement from the agency. In the l a t t e r case, the patient could withhold payment of fees. Using Ontario as an example, only 10% of the doctors b i l l patients d i r e c t l y ^ and consequently, the majority of patients i n Ontario are unable to withhold fee payments. I t i s l i k e l y that the s i t u a t i o n i n other provinces resembles that of Ontario. In conclusion, withholding fees i s , generally no longer a mechanism by which patients i n Canada may hold the doctor accountable. 4. Changing Doctors There can be no doubt that many patients express t h e i r displeasure with a doctor by never returning to him. From the consumer's viewpoint, 16 changing doctors provides a simple mechanism of preventing any further d i s s a t i s f a c t i o n with the doctor. Nevertheless, i t has the disadvantage that the doctor may not be aware that he has l o s t a patient and conse-quently, w i l l not know the reasons for the patient's d i s s a t i s f a c t i o n . No data i s a v a i l a b l e to indicate how frequently t h i s mechanism i s used i n Canada. A study by Warner suggests that i t i s infrequent."*"^ In Great B r i t a i n , where general p r a c t i t i o n e r s are paid on a c a p i -tatio n basis, records are maintained of each doctor's "panel" or l i s t of patients. I t i s , therefore, possible to determine the frequency with which patients change doctors. This was documented by K l e i n i n his book, Complaints against Doctors . His data indicated that approximately 1 i n 18 every 250 patients changes t h e i r doctor each year. I t should be noted that these figures s p e c i f i c a l l y excluded changes due to changes i n address. I t might be expected that i n Canada, where changing doctors does not involve a bureaucratic process, that the frequency of switching doctors may be greater than i n the U.K. 5. Double-Checking A mechanism of acc o u n t a b i l i t y of a s i m i l a r nature to changing doctors i s that of double-checking or v i s i t i n g another doctor to v e r i f y the diagnosis of a previous doctor. Such double-checking has been frequently observed at The Hospital for Sick Children i n Toronto, and i s p a r t i c u l a r l y noted i n a c l i n i c known as the "Drop-In C l i n i c " , where no p r i o r appointment i s . , 19 required. I t i s not known how common t h i s p r a c t i c e i s i n Canada. Wolfe and Badgely report that an unpublished study of the Saskatchewan Medical Care Insurance Commission found that "nearly 90% of users of care i n a 17 given year saw only one doctor and the majority of the remainder were 20 referred to others by the f i r s t doctor seen". 6. Malpractice L i t i g a t i o n The f i n a l and most extreme mechanism of account a b i l i t y open to patients i s medical malpractice l i t i g a t i o n . As w i l l become apparent l a t e r i n t h i s study, there are a number of d i f f i c u l t i e s i n i n i t i a t i n g a medical malpractice s u i t . I t should be noted, however, that medical malpractice l i t i g a t i o n provides the only mechanism by which the patient may receive reimbursement for any losses he may have incurred as a r e s u l t of the doctor's actions. I t i s , therefore, unique amongst the other mechanisms of ac c o u n t a b i l i t y . Peer Directed Accountability There are a number of mechanisms by which doctors may be held ac-countable by t h e i r peers., Although these are often i n i t i a t e d by i n d i v i d -uals other than doctors ( p a r t i c u l a r l y by p a t i e n t s ) , the process i s l a r g e l y one of peer review. 1. Medical R e f e r r a l Structure Freidson i n his essay on " C l i e n t Control and Medical P r a c t i c e " , notes that the p o s i t i o n of the physician i n the process of r e f e r r a l s may r e f l e c t on the degree of informal peer review to which the physician i s subject: " I f he i s the f i r s t p r a c t i t i o n e r seen i n the lay r e f e r r a l structure, and i f he sends no cases further on, he i s subjected only to the lay evaluation of his patients.... If he refe r s a case to another p r a c t i t i o n e r , however, h i s professional behaviour becomes subject to the evaluation of the consultant. In turn, when the patient leaves the consultant, he often 18 passes back to the r e f e r r i n g p r a c t i t i o n e r so i n t h i s sense, the professional consultant i s subjected to £lje evaluation of the r e f e r -r i n g physician". Thus, the more involvement a physician has i n the r e f e r r a l process, the more l i k e l y his work w i l l be informally s c r u t i n i z e d and reviewed by colleagues. In the case of a consultant, the r e f e r r i n g physician may censure his actions by not r e f e r r i n g any further patients. The consultant, i n contrast, may censure the r e f e r r i n g physician by sug-gesting i n d i r e c t l y to the patient not to return to the r e f e r r i n g physician. 2. Group Medical P r a c t i c e It has been suggested that one of the advantages of group medical p r a c t i c e i s that i t automatically forces a doctor to be accountable to his co-workers. Wolfe and Badgely describe the s i t u a t i o n i n a group pr a c t i c e i n Saskatoon: "The presence of co-workers i n the Saskatoon C l i n i c not only contributed to the doctor's e f f i c i e n c y , but also caught them i n a web of informal checks on t h e i r performance. For as w e l l as peer review, t h e i r work was sub-j e c t to constant scrutiny for i t s thorough-ness by nurses, technicians and the medical s t a f f " In most instances, such peer and co-worker accoun t a b i l i t y w i l l be informal. In some group pr a c t i c e s , a formal process of peer review has been i n s t i t u t e d . Such a process, i t has been reported, requires consid-23 erable commitment: by the partners, i f i t i s to be successful. 3. Hospitals Since most p r a c t i s i n g physicians require p r i v i l e g e s at a h o s p i t a l , the h o s p i t a l provides the t h i r d locus for peer a c c o u n t a b i l i t y . Although 19 appointments to hospitals are con t r o l l e d by the lay Board of Trustees, they generally accept the recommendation of the Medical Advisory Committee, a committee comprised almost e n t i r e l y of doctors. Ac c r e d i t a t i o n standards i n Canada require that h o s p i t a l s i n s t i t u t e formal mechanisms of medical audit. The generally accepted mechanism i s that of c r i t e r i a audit i n which the actual handling of disease e n t i t i e s i s compared with the hypothetical i d e a l s i t u a t i o n . Such an audit does not r e f l e c t on an i n d i v i d u a l p r a c t i t i o n e r , but rather on the medical s t a f f as a whole. Hospitals may introduce a v a r i e t y of other mechanisms of accoun t a b i l i t y . These may include u t i l i z a t i o n review, ti s s u e review, mortality rounds and discharge rounds. These mechanisms, to various degrees, hypothetically hold the i n d i v i d u a l doctor accountable to h i s peers. Complaints referred to a h o s p i t a l concerning a doctor would normally be received by the hospital's administrator. I f the h o s p i t a l i s s u f f i -c i e n t l y large, these complaints would be ref e r r e d f o r action to the chief of the medical department to which the doctor i s appointed. Complaints of a serious nature may be reviewed by the M.A.C. whose recommendation concerning the continuation of the doctor's appointment would be sent to the hospi t a l ' s Board of Trustees. In a recent case where a doctor walked out of the operating room i n the middle of an operation when complications had developed, the Medical Advisory Committee of the ho s p i t a l recommended severely c u r t a i l i n g h i s operating p r i v i l e g e s . The Board of Trustees, however, f e l t that the circumstances demanded a more 24 severe penalty and suspended the doctor's h o s p i t a l appointment. This i s an unusual s i t u a t i o n where the Board over-ruled the M.A.C. and i s 20 perhaps an i n d i c a t i o n that Trustees w i l l be taking a more a c t i v e r o l e i n qua l i t y control decisions i n the future. C e r t a i n l y , physician account-a b i l i t y within hospitals i s becoming more pronounced as a c c r e d i t a t i o n agencies demand increased medical audit and Trustees demand greater expression of acco u n t a b i l i t y . 4. P r o v i n c i a l Licensing Agencies A fourth locus of peer directed a c c o u n t a b i l i t y i s the p r o v i n c i a l l i c e n s i n g agency. A l l provinces have established medical l i c e n s i n g agencies which are co n t r o l l e d by lice n s e d physicians. A l l of these agencies have mechanisms of reviewing complaints concerning the profes-s i o n a l conduct and behaviour of doctors licensed under t h e i r j u r i s d i c t i o n . A questionnaire (see Appendix B) was sent to each of these agencies requesting information on t h e i r complaint and d i s c i p l i n a r y proceedings. Aft e r two mailings, eight of the ten agencies responded to the question-n a i r e . Although the r e s u l t s of the questionnaire indicated that the d e t a i l s of each of the systems d i f f e r from province to province, they tended to follow the scheme outlined below. Licensing of doctors i s performed by an agency whose members consist of a l l i n d i v i d u a l s licensed by the agency. The agency i s governed by a c o u n c i l or board, whose members are elected by the members of the agency. In several instances, there are a small number of lay (non medical) members appointed to the council by the Minister of Health of the province. Verbal or written complaints may be received by the agency concerning a licensed doctor. A l l complaints are screened by the employees of the agency and attempts are made to resolve minor disputes at t h i s l e v e l . 21 Unresolvable and major complaints (those of professional misconduct), are generally referred to a Complaints Committee. The Complaints Committee which may or may not have lay representatives, reviews the complaint and returns a decision concerning i t . If the Complaints Committee f e e l s that there i s evidence of professional misconduct or incompetence, i t w i l l recommend that the complaint be taken to the D i s c i p l i n a r y Committee. The D i s c i p l i n a r y Committee w i l l hold a hearing, decide whether there has been a breach of professional misconduct, and i f so, assign a penalty ranging from a reprimand to a permanent suspension of l i c e n s e . Variations occur i n t h i s process from province to province. In Newfoundland, the Registrar i s given considerable d i s c r e t i o n i n the handling of complaints. In addition, Newfoundland has no separate com-p l a i n t or d i s c i p l i n a r y committee, but the Registrar r e f e r s a l l "serious" cases to the Medical Board, the governing body of the agency. In Nova Scotia and New Brunswick, the complaints committee i s known as the "Committee on D i s c i p l i n e " . A l l written complaints are r e f e r r e d to t h i s committee which may recommend to the Medical Board that the case be dismissed, the p r a c t i t i o n e r reprimanded or i n s i t u a t i o n s of professional misconduct or mental i n s t a b i l i t y , that an inquiry committee be appointed to take further action. 25 Doctors i n Quebec are licensed under "The Professional Code" by which 38 other occupations are also licensed. Each occupation has i t s own "Corporation" whose governing body or "Bureau" i s elected by the mem-bers or licencees of the corporation. The l e g i s l a t i o n requires that each corporation form a d i s c i p l i n a r y committee whose chairman i s a lawyer ap-pointed by the Governor i n Council. A l l complaints concerning a member 22 of the corporation must be sent to the D i s c i p l i n e Committee. The D i s c i -p l i n e Committee acts as an administrative t r i b u n a l , .and i t s decision may be appealed to the "Professions T r i b u n a l " which i s composed of 5 judges. The l e g i s l a t i o n also creates a c e n t r a l agency known as the "O f f i c e Des Professions Du Quebec". This agency i s responsible for ensuring the "protection of the p u b l i c " and as such acts as a watchdog agency over the corporation. Ontario has not gone as f a r as Quebec, but has consolidated the li c e n s i n g of f i v e health r e l a t e d professions, Medicine, Dentistry, 26 Optometry, Nursing and Pharmacy, under the Health D i s c i p l i n e s Act. Each profession i s organized into a College and governed by a coun c i l which has lay representation i n addition to the elected representatives. In the case of medicine, a l l written complaints concerning licensed phy-si c i a n s are f i r s t investigated by the College's s t a f f and then referred to the Complaints Committee. Situations of apparent p r o f e s s i o n a l mis-conduct or incompetence are ref e r r e d by the Complaints Committee to the D i s c i p l i n e Committee for a formal inquiry. In other s i t u a t i o n s , the Complaints Committee may dismiss the complaint or admonish the doctor i f the Committee f e e l s h i s behaviour was unprofessional but not profes-s i o n a l misconduct. Situations of mental or phys i c a l incapacity are r e f e r -red to the Executive Committee f or further action. I f a complaint i s dismissed by the Complaints Committee, both the complainant and the doctor against whom the complaint was lodged, may appeal the decision to the Health D i s c i p l i n e s Board. This i s a Board of 5 to 7 lay members appointed A Although i t may appear i l l o g i c a l f o r a doctor to appeal a dismissal of a complaint, several such appeals have been made when the dismissal included an admonishment. 23 by the Governor i n Council. The purpose of the Board i s to ensure that a l l complaints are handled f a i r l y and as such the Board may over-rule the decision of the various Complaints Committee. In Manitoba, the method of handling complaints follows f a i r l y c l o s e l y to the general scheme outlined previously. A l l complaints are reviewed by a Complaints Committee. Situations concerning standards of medical p r a c t i c e are referred to the Standards Committee for further review. Complaints concerning e t h i c a l or moral areas are referred to the Executive Committee which may or may not i n s t i t u t e a formal inquiry (equivalent of a D i s c i p l i n e Committee). The handling of complaints i n Saskatchewan and Alberta follows the general scheme. In B r i t i s h Columbia, however, the Complaints Committee also c a r r i e s out the r e s p o n s i b i l i t i e s normally associated with D i s c i p l i n e Committees. In most instances, the l e g i s l a t i o n and regulation concerning the l i c e n s i n g of the medical profession do not present a c l e a r d e f i n i t i o n of "professional misconduct". The l e g i s l a t i o n i n Saskatchewan l i s t s 12 areas 27 which constitute p r o f e ssional misconduct. The regulation i n Ontario (see Appendix C) are more extensive and l i s t s 31 areas ranging from " f a i l u r e to maintain the standards of p r a c t i c e of the profession" to 28 an i n c o r r e c t l i s t i n g i n the telephone d i r e c t o r y . The b i e n n i a l reports of the Ontario College o u t l i n e the cases handled 29 by the D i s c i p l i n a r y Committee over the previous 6 months. I t was therefore possible to review the cases for the period June, 1973 to Feb-ruary, 1977. TableII outlines the r e s u l t s of t h i s review. 24 Table II - Outline of Cases Handled by the D i s c i p l i n e Committee of the College of Physicians and Surgeons of Ontario for the Period of June, 1973 to February, 1977 Nature of the Charge To t a l Convictions Dismissals c o n f l i c t of i n t e r e s t 9 7 2 standard of pra c t i c e 22 6 16 b i l l i n g i r r e g u l a r i t i e s 13 6 7 sexual r e l a t i o n s h i p with a patient 7 6 1 other i l 12 3 66 37 29 Although " f a i l u r e to conform to the standards of p r a c t i c e of the profession" was the most frequent charge, only 27% of these cases resulted i n a con-v i c t i o n . E t h i c a l problems (sexual r e l a t i o n s with a patient, c o n f l i c t of i n t e r e s t , etc.) although le s s frequent, resulted i n a higher conviction rate. This data would therefore suggest that the profession has some d i f f i c u l t y i n either defining acceptable standards of p r a c t i c e or judging whether these standards have been met. Included i n t h i s questionnaire to the l i c e n s i n g agencies was a request for data i n d i c a t i n g the number of complaints received and how these com-p l a i n t s were handled. Several agencies were unable to supply any data and i n others, the data was incomplete. O v e r a l l , the data a v a i l a b l e was inadequate for making inferences or for comparing the s i t u a t i o n between j u r i s d i c t i o n . A f i n a l question asked of the l i c e n s i n g agents was whether they review a l l cases of medical malpractice to determine whether d i s c i p l i n a r y 25 actions should be taken. Only Quebec indicated a p o s i t i v e reply noting that "L'Infomation J u d i c i a r e " and "La Semaine Commerciale" l i s t s every lawsuit i n the Province of Quebec. I t should be noted that s i m i l a r case 30 reviews are av a i l a b l e i n other areas of the country. The o v e r a l l impression of the l i c e n s i n g agencies i n Canada i s that they attempt to serve the i n t e r e s t of the public while also serving the in t e r e s t s of the profession. Ontario and Quebec have recognized the po t e n t i a l c o n f l i c t between these goals and have attempted to provide safeguards to ensure that the i n t e r e s t s of the profession do not over-r i d e those of the pub l i c . Quebec's safeguard i s an agency which acts as a watchdog over a l l licensed professions. In addition, they have attempted to ensure equity i n the handling of complaints by appointing a judge to be chairman of the D i s c i p l i n e Committee and by s e t t i n g up a process of appeal of decisions of th i s Committee. The emphasis i n Ontario has been to protect the r i g h t s of the i n d i v i d u a l by ensuring access to the com-pl a i n t s handling machinery. In addition, through appeal to a lay board, equity i n the handling of complaints i s assured. In other provinces, access and equity i n the handling of complaints i s less c e r t a i n due to the lack of an appeal mechanism for the complainant. In conclusion, i t i s i n t e r e s t i n g to note that of the s i x responding p r o v i n c i a l l i c e n s i n g agencies (other than Quebec and Ontario), none of them an t i c i p a t e d changes i n the l e g i s l a t i o n governing t h e i r operation i n the near future. S o c i a l A c countability As with a l l members of society, doctors are expected to conform to the s o c i a l norms outlined i n society's laws. In the l a s t section, i t was 26 indicated that the p r o v i n c i a l l e g i s l a t u r e s have l a r g e l y a l l o c a t e d the r e s p o n s i b i l i t y for the se t t i n g and enforcing of medical standards to medical l i c e n s i n g agencies. Exceptions do e x i s t ; for example, the i n c l u s i o n of 31 regulations concerning abortion i n fed e r a l criminal law. I t i s i n t e r e s t i n g to note that other r e s p o n s i b i l i t i e s which would normally be handled by c i v i l a u t h o r i t i e s , have been a l l o c a t e d to l i c e n s i n g bodies. In Ontario, for example, the i n v e s t i g a t i o n of b i l l i n g abnormalities by doctors i s handled by a Committee of the College, of Physicians and Surgeons of 32 Ontario. This Committee i s then able to recommend to OHIP, the p r o v i n c i a l health insurance plan, whether the b i l l i n g was legitimate or whether payment should be withheld. In normal circumstances, such investigations would be handled by the p o l i c e and prosecutions handled through the courts. Much of the r e s p o n s i b i l i t y for the s o c i a l a c c o u n t a b i l i t y of i n d i v i d u a l medical p r a c t i t i o n e r s has been placed i n the hands of the profession by the p r o v i n c i a l l e g i s l a t u r e s . I t i s c l e a r l y i n the best i n t e r e s t s of the profession not to s i g n i f i c a n t l y abuse these powers since the l e g i s l a t u r e can j u s t as e a s i l y remove them. L e g i s l a t i v e c o n t r o l , therefore, provides assurances against the s i g n i f i c a n t abuse of the powers by the profession of medicine. A second mechanism of s o c i a l a c c o u n t a b i l i t y i s medical malpractice l i t i g a t i o n . In contrast to the process of peer review of the medical l i c e n s i n g agencies, medical malpractice s u i t s are judged according to the standards and values of society rather than those of the profession of medicine. In many cases, the standards and values of society and those of medicine are equivalent. Nevertheless, s i t u a t i o n s have occurred where the courts have over-ruled the accepted professional standards. Medical 27 malpractice l i t i g a t i o n , therefore, provides a process of s o c i a l account-a b i l i t y , not only for the i n d i v i d u a l p r a c t i t i o n e r , but also f o r the profession of medicine. Conclusion This chapter has presented an o u t l i n e of mechanisms by which both the p r a c t i t i o n e r and the profession may be held accountable. Medical malpractice l i t i g a t i o n provides one of these mechanisms and i s notable i n that i t may be c l a s s i f i e d as a process of s o c i a l a c c o u n t a b i l i t y . In addition, medical malpractice l i t i g a t i o n provides the only mechanism whereby the patient may receive reimbursement for losses incurred as a r e s u l t of medical treatment. 28 FOOTNOTES - CHAPTER I I R o b e r t N. W i l s o n and Samuel W. Bloom, " P a t i e n t -P r a c t i t i o n e r R e l a t i o n s h i p s , " i n Handbook of M e d i c a l  S o c i o l o g y , eds. Howard E. Freeman, S o l L e v i n e and Leo G. Reeder (Englewood C u f f s , N . J . : P r e n t i c e H a l l , 1 972), p. 315. E l i o t F r e i d s o n , P a t i e n t s Views of M e d i c a l P r a c t i c e , (New Y o r k : R u s s e l l Sage F o u n d a t i o n , 1961). A. D o n a b e d i a n , " P r o m o t i n g Q u a l i t y Through E v a l u a t i n g The P r o c e s s of P a t i e n t C a r e , " Med l e a l Car e 6 (March, 1968): 181-202. F r e i d s o n , P a t i e n t s V i e w s , p. 208. IBID, p. 53. R u d o l p h K l e i n , C o m p l a i n t s A g a i n s t D o c t o r s , ( Kent:The Stanhope P r e s s , 1973), p. 12. V. F r a n c i s , B.H. K o r s c h and M a r i e J . M o r r i s , "Gaps i n D o c t o r - P a t i e n t C o mmunication: P a t i e n t s ' R e s p o n s e to M e d i c a l A d v i c e , " New E n g l a n d J o u r n a l of M e d i c i n e , 280 (March, 1969):535-540. J . J . A l p e r t , J . Kosa, L . J . H a g g e r t y , L.S. R o b e r t s o n and M a r g a r e t H a g g e r t y , " A t t i t u d e s and S a t i f a c t i o n s of Low Income F a m i l i e s R e c e i v i n g C o m p r e h e n s i v e P e d i a t r i c C a r e , " A m e r i c a n J o u r n a l of P u b l i c H e a l t h 60 (March, 1970):499-506. R.W. D e i s h e r , W.L. E n g e l , R. S p i e l h o l z and Susan J . S t a n d f a s t , " M o thers O p i n i o n s of T h e i r P e d i a t r i c C a r e , " P e d i a t r i c s 35 ( J a n u a r y , 1965):82-90. E.R. Weinerman, " P a t i e n t s P e r c e p t i o n s o f Group M e d i c a l C a r e , " A m e r i c a n J o u r n a l of P u b l i c H e a l t h 54 (June, 1964):880-889. Lawrence S. L i n n , " F a c t o r s A s s o c i a t e d W i t h P a t i e n t E v a l u a t i o n of H e a l t h C a r e , " M i l l b a n k M e m o r i a l Fund Q u a r t e r l y 53 ( F a l l , 1975):531-548. I n t e r v i e w w i t h Dr. R. Wales, A s s i s t a n t R e g i s t r a r , The C o l l e g e of P h y s i c i a n s and Surgeons of O n t a r i o , May, 1977. E l i o t F r e i d s o n , " C l i e n t C o n t r o l and M e d i c a l P r a c t i c e , " A m e r i c a n J o u r n a l of S o c i o l o g y 65 ( A p r i l , 1960):374-382. A l v i n G. B u r s t e i n and C h a r l e s L. Bowden, The P s y c h o s o c i a l  B a s i s of M e d i c a l P r a c t i c e , ( B a i t i m o r e : T h e W i l l i a m s and W i l k i n s Company, 1974), p. 42. 29 FOOTNOTES - CHAPTER I I 15. I n t e r v i e w w i t h Dr. B e r n a r d D i c k e n s , V i s i t i n g P r o f e s s o r , F a c u l t y of Law, U n i v e r s i t y of T o r o n t o , T o r o n t o , June, 1977. 16. T e l e p h o n e i n t e r v i e w w i t h Dr. A l i c e G o o d f e l l o w , Mediiical O f f i c e r , O n t a r i o H e a l t h I n s u r a n c e P l a n , Government of O n t a r i o , T o r o n t o , November, 1976. 17. M o r t o n Warner, " F a m i l y M e d i c i n e i n a Consumer Age," C a n a d i a n F a m i l y P h y s i c i a n 23 (May, 1977):48-56. 18. K l e i n , C o m p l a i n t s A g a i n s t D o c t o r s , p. 107. 19. I n t e r v i e w w i t h Dr. D o n a l d S t e w a r t , D i r e c t o r , M e d i c a l O u t - p a t i e n t D e p a r t m e n t , H o s p i t a l f o r S i c k C h i l d r e n , T o r o n t o , J u l y , 1976. 20. Samuel W o l f e and R o b i n B a d g e l y , "The F a m i l y D o c t o r , " M i l l b a n k M e m o r i a l Fund Q u a r t e r l y 50 ( A p r i l , 1 972):75. 21. F r e i d s o n , C l i e n t C o n t r o l , p. 268. 22. W o l f e and B a d g e l y , "The F a m i l y D o c t o r , " p. 105. 23. N.C.H. S t o t t and R.H. D a v i d , " C l i n i c a l and A d m i n i s t r a t i v e Review i n G e n e r a l P r a c t i c e , " J o u r n a l of R o y a l C o l l e g e o f  G e n e r a l P r a c t i t i o n e r s 25 (December, 1975):888-896. 24. Pye v. Pembroke C i v i c H o s p i t a l , D e c i s i o n of the H o s p i t a l Appeal;.Board i n the M a t t e r of an A p p e a l Under S e c t i o n 47 of t h e P u b l i c H o s p i t a l s A c t , R e v i s e d S t a t u t e s o f O n t a r i o 1970, O n t a r i o , 1976. 25. Quebec, P r o f e s s i o n a l Code, S t a t u t e s of Quebec C.43, 1973. 26. O n t a r i o , H e a l t h D i s c i p l i n e s A c t , S t a t u t e s of O n t a r i o C.47, 1974. 27. S a s k a t c h e w a n , M e d i c a l P r o f e s s i o n A c t , R e v i s e d S t a t u t e s of S askatchewan 1965, Cap 303. 28. O n t a r i o , R e g u l a t i o n s w i t h R e s p e c t to M e d i c i n e , H e a l t h  D i s c i p l i n e s A c t , S t a t u t e s of O n t a r i o , C.47, 1974. 29. C o l l e g e o f P h y s i c i a n s and Surgeons of O n t a r i o , A n n u a l and  I n t e r i m R e p o r t s , 1973-1977, O n t a r i o . 30. F o r Example, D o m i n i o n R e p o r t s , O n t a r i o R e p o r t s , E t c . 31. Canada, C r i m i n a l Code, R e v i s e d S t a t u t e s of Canada 1970, C.C-34, s.251. 32. S. Mahon, "What E v e r y M.D. S h o u l d Know About the M.R.C. ( M e d i c a l Review C o m m i t t e e ) , " O n t a r i o M e d i c a l Review 43 (November, 1976):585. 30 CHAPTER III THE PURPOSE AND FUNCTIONS OF MEDICAL MALPRACTICE LITIGATION As a process of law, medical malpractice l i t i g a t i o n may be seen as having intended s o c i a l functions or purposes. In turn, i t may d i r e c t l y or i n d i r e c t l y serve unintended s o c i a l functions. I t i s therefore neces-sary to examine the s o c i a l r o l e s , both intended and unintended, of medical malpractice l i t i g a t i o n . Medical malpractice l i t i g a t i o n i s one of many actions which i s handled through the law of t o r t s . I t w i l l therefore be us e f u l to b r i e f l y examine the nature and purpose of the law of t o r t s . The Nature, Purpose and Function of the Law of Torts The law of tort s i s a section of common law: that i s law based p r i m a r i l y on past precedents rather than on l e g i s l a t e d statutes. I t i s consequently an area of law which i s i n a constant state of fl u x as the a c c e p t a b i l i t y of past precedents and new judgements i s constantly being tested. The process of l i t i g a t i o n provides the v e h i c l e for t h i s testing and the end product of l i t i g a t i o n , the judgement, i d e n t i f i e s the relevant precedent as well as i n d i c a t i n g whether past precedents remain acceptable. Wright, i n h i s text on the law of t o r t s , describes the purpose of thi s branch of common law as follows: " A r i s i n g out of the various and ever increasing clashes of the a c t i v i t i e s of persons l i v i n g i n 31 a common society, carrying on business i n com-p e t i t i o n with fellow members of that society, owning property which may i n any of a thousand ways a f f e c t the person or property of others -i n short, doing a l l the things which constitute modern l i v i n g - there must, of necessity, be losses or i n j u r i e s of many kinds sustained by one person as a r e s u l t of the conduct of others. The purpose of the law of to r t s i s to adjust these losses and to a f f o r d compen-sation for i n j u r i e s sustained by one person as the r e s u l t of the conduct of others". The law of t o r t s , therefore, serves the r o l e of assigning the respon-s i b i l i t y for the cost of losses and i n j u r i e s . As such, i t provides a mechanism by which compensation may be obtained. However, as Wright and Linden l a t e r point out, "no system of law w i l l ever attempt to compensate 2 for a l l losses". According to what c r i t e r i a then, are losses viewed as being acceptable for compensation by the courts? Not s u r p r i s i n g l y , these c r i t e r i a have changed s i g n i f i c a n t l y over the l a s t three centuries as the law of to r t s has adapted to the con-tingencies of new s o c i a l and technological developments. Fleming has 3 suggested three stages i n the development of the law of t o r t s . The f i r s t , p r i o r to the I n d u s t r i a l Revolution, saw cases of t o r t judged on the basis of whether the defendant had i n t e n t i a l l y caused the trespass harm or damage. Unintentional trespass, harm or damage was 4 generally assessed i n favour of the defendant. With the development of the I n d u s t r i a l Revolution i n the l a t e 18th and early 19th centuries, people's a c t i v i t i e s became more i n t e r - r e l a t e d and with urbanization, contact between people became more frequent. As a consequence, the opportunity for the sustaining of losses and i n j u r i e s as a r e s u l t of another's a c t i v i t y , became more frequent. I t was during the 19th century that the postulate "no l i a b i l i t y without f a u l t " became 32 the accepted l e g a l doctrine i n the law of torts."' This was achieved by r e q u i r i n g the p l a i n t i f f to prove that h i s misfortune was the r e s u l t of i n t e n t i o n a l or negligent misconduct by the defendant. The use of " f a u l t " was believed to serve the a d d i t i o n a l function of providing a deterrent to the behaviour "at f a u l t " , since the consequences, more often than not, were f i n a n c i a l r u i n . I t should also be noted that the use of the term " f a u l t " c a r r i e d with i t (as i t s t i l l does), a moral connotation of blameworthiness. The scond stage of the development of law of t o r t s , therefore, was that period when " f a u l t " was the prime c r i t e r i a by which t o r t judgements were made. Up u n t i l the end of the 19th century, the law of t o r t s was seen as having a "cost s h i f t i n g " function i n that losses were transferred from one i n d i v i d u a l or enterprise to another.^ By the beginning of the 20th century, however, i t was f i n a l l y recognized that many enterprises were trea t i n g the cost of t o r t l i a b i l i t y as overheads to be absorbed i n the p r i c e of the goods or services being produced. In t h i s instance, the impact of t o r t judgements was one of "cost spreading" of losses amongst consumers rather than one of "cost s h i f t i n g " . The introduction, and now almost u n i v e r s a l a p p l i c a t i o n of l i a b i l i t y insurance, has further emphasized the "cost spreading" rather than "cost s h i f t i n g " e f f e c t of t o r t judge-ments . L i a b i l i t y insurance has also had profound e f f e c t s on the administration' of the law of t o r t s so that i t has been suggested that the postulate " l i a b i l i t y without f a u l t " i s f a s t becoming the norm.^ Factors most responsible f o r t h i s trend include the tendency f o r insurance companies to s e t t l e claims out of court frequently with l i t t l e regard to the issues 33 of negligence and f a u l t ; government intervention i n several l i a b i l i t y 9 f i e l d s , most notably workmen's compensation and automobile insurance, and the tendency of courts ( p a r t i c u l a r l y j u r i e s ) , to sympathetically favour that party with the l e a s t a b i l i t y to spread the cost of the loss (usually the p l a i n t i f f ) . " * " ^ The o v e r a l l impact has been the erosion of the authority of the doctrine of "no l i a b i l i t y without f a u l t " . In c e r t a i n f i e l d s , t h i s erosion i s almost complete, for example, with worker's compensation schemes (universal i n Canada), where t o r t recovery by l i t i g a t i o n against an employer has been abolished i n return for lower but assured benefits of workmen's compensation. Another example i s the introduction, i n several j u r i s d i c t i o n s , of "no f a u l t " automobile i n s u r -ance. The t h i r d stage i n the development o'£ the law of t o r t s has been marked, therefore, by the increased u t i l i z a t i o n of "cost spreading" mechanisms ( i . e . insurance) so that the impact of t o r t judgements has been towards the "cost spreading" rather than the cost s h i f t i n g " of losses. This has been accompanied by the gradual erosion of f a u l t as the c r i t e r i a of loss a l l o c a t i o n . I t should be noted that these changes are currently i n process and are by no means complete. In c e r t a i n areas, f a u l t s t i l l remains a strong determinant of loss a l l o c a t i o n . In addition, "cost spreading" has not completely replaced the "cost s h i f t i n g " e f f e c t of t o r t judgements. The primary purpose of the law of t o r t s , therefore, remains the assignment of the r e s p o n s i b i l i t y f o r carrying the cost of losses and i n j u r i e s . As such, the law of t o r t s provides a mechanism whereby compensation for losses may be obtained. Although the erosion of " f a u l t " and the increasing incidence of 34 "cost spreading" has lessened the impact of t o r t judgements on the i n d i v i d u a l , the law of tort s continues to serve a number of unintended s o c i a l functions. These include the s e t t i n g o f acceptable standards of behaviour as well as the deterrence of behaviour judged by the courts as being unacceptable. The Nature and Purpose of Medical Malpractice L i t i g a t i o n Where does medical malpractice l i t i g a t i o n f i t into t h i s scheme of the law of torts? S u r p r i s i n g l y , i t i s one of the f i e l d s of the law of tor t s i n Canada where " f a u l t " rules supreme. The reasons are several. In the f i r s t place, the overwhelming majority of p r a c t i s i n g doctors i n Canada do not carry medical malpractice insurance. Protection against medical malpractice l i t i g a t i o n i s generally obtained through membership 12 i n the Canadian Medical Protective Association (CM.P.A.). Although the CM.P.A. has never f a i l e d to cover the cost (including awards of l i t i g a t i o n brought against i t s members, i t i s not s t r i c t l y l i a b l e f o r these costs and hence i s not an insurer. O r i g i n a l l y modelled a f t e r the medical defence unions i n Great B r i t a i n , the CM.P.A. endeavours to protect the reputation of i t s members and the profession of medicine i n Canada. Towards t h i s end, the CM.P.A. w i l l provide, regardless of cost, a comprehensive defence for i t s members against malpractice 13 claims i t considers unjust, harrassing or f r i v o l o u s . In claims where a doctor i s considered c l e a r l y at f a u l t , a reasonable settlement w i l l be attempted out of court; however, i f there i s any chance that the doctor was not a f a u l t , the CM.P.A. w i l l defend and appeal h i s case 14 up to the Supreme Court. Such a p o l i c y c l e a r l y maintains the primacy 35 of f a u l t i n determining whether the defendant should carry the losses. This may be compared to the s i t u a t i o n i n the U.S. where insurance car-r i e r s w i l l frequently s e t t l e minor claims without regard to th e i r v a l i d -i t y i n order to avoid costly court proceedings. "^ A second factor which has maintained the primacy of " f a u l t " i n Canadian medical malpractice l i t i g a t i o n i s the general p r a c t i c e i n Canada, 16 of disallowing judgement by jury. The exclusion of j u r i e s i s based on the b e l i e f that the technical nature of evidence i s beyond the com-prehension of most i n d i v i d u a l s and that consequently, a f a i r judgement would not be reached. This e f f e c t i v e l y prevents the t a c t i c frequently used i n the U.S.A. of swaying the jury by appealing to t h e i r sympathies.^ A f i n a l factor i s the general p o l i c y of Canadian courts not to accept the dictum of "res ipsa l o q u i t u r " (the thing speaks for i t s e l f ) 18 i n medical malpractice cases. Under t h i s dictum, obvious i n j u r i e s are considered obvious cases of f a u l t , and the defendant i s then responsible for showing that he was not "at f a u l t " . This p a r t i a l transfer of the "burden of proof" from the p l a i n t i f f to the defendant reduces the impact of f a u l t since f a u l t i s assumed u n t i l i t i s disproved. What then, i s the s o c i a l purpose of medical malpractice l i t i g a t i o n i n Canada? As with a l l t o r t actions, medical malpractice l i t i g a t i o n serves the purpose of assigning the r e s p o n s i b i l i t y of covering the cost of losses and damages which i n t h i s case, have been incurred as a r e s u l t of a doctor's professional a c t i v i t i e s . As such, i t provides patients with a mechanism by which they may obtain compensation for medically caused i n j u r i e s and losses. 36 Other Functions served by Medical Malpractice L i t i g a t i o n As a process of law, medical malpractice l i t i g a t i o n may be ascribed c e r t a i n intended functions or purposes. In turn, i t may be seen as having c e r t a i n unintended e f f e c t s . These include: (1) defining unacceptable standards of the pra c t i c e of medicine; (2) deterrence of unacceptable conduct (as defined i n Chapter IV) (3) q u a l i t y control over the p r a c t i c e of medicine; (4) s o c i a l a c c o u n t a b i l i t y of the i n d i v i d u a l p r a c t i t i o n e r and profession of medicine. 1. Defining Unacceptable Standards of the Pra c t i c e of Medicine By a s c r i b i n g " f a u l t " and consequently, the r e s p o n s i b i l i t y for car-rying the costs of medically caused i n j u r i e s and losses, the courts are i n e f f e c t , censuring the behaviour of the doctor as being s o c i a l l y unac-ceptable. The ruli n g s of the court, therefore, define both acceptable and unacceptable standards of pr a c t i c e of medicine. 2. Deterrence of Negligent Conduct Roemer contends that "there i s no question that the threat of mal-pr a c t i c e s u i t i s an inducement to elevate the d i l i g e n c e of medical 19 performance". Such elevation of d i l i g e n c e , no doubt, serves a p o s i t i v e r o l e up to a c e r t a i n point. Beyond that point, however, i t has possible negative e f f e c t . I t has been argued that doctors i n the U.S.A., under the increasing pressure of medical malpractice l i t i g a t i o n , are steering away from procedures known to be " s u i t prone", even when these procedures 20 are indicated. A d d i t i o n a l l y , i t has been suggested that the same pressure i s causing doctors to order unnecessary diagnostic tests i n an e f f o r t 37 to protect themselves from l i t i g a t i o n . 3. Quality Control over the Practice of Medicine Freidson describes the current system of q u a l i t y control i n most j u r i s d i c t i o n s as follows: " T r a d i t i o n a l management of the problem of assuring an adequate standard of medical care consists of r e c r u i t i n g i n t e l l e c t u a l l y capable students, t r a i n -ing them properly before l i c e n s i n g them, and then turning them loose to p r a c t i c e . Such management rest s on untennable assumptions about the s t a b i l i t y , strength of motives, values and knowledge absorbed within the course °f a l i m i t e d period of formal education". In Chapter I I , i t was indicated that l i c e n s i n g agencies have the machinery for determining and censuring unacceptable standards of p r a c t i c e . The r e s u l t s of a review of the d i s c i p l i n a r y proceedings of the College of Physicians and Surgeons of Ontario, suggested that d i f f i c u l t i e s were encountered i n either defining acceptable standards of p r a c t i c e or judging whether these standards have been met. Although i t has been asserted that "the malpractice action may be ignored i n any r e a l i s t i c assessment of the adequacy of e x i s t i n g q u a l i t y 24 c o n t r o l " , i t has played an important r o l e i n unearthing d e f i c i e n t practices i n medicine, i n i n i t i a t i n g and promoting new practices ( i . e . sponge counts), and i n defining minimal acceptable standards of q u a l i t y . 4. S o c i a l Accountability of the Individual P r a c t i t i o n e r and Profession of Medicine As was discussed i n Chapter I, both the i n d i v i d u a l p r a c t i t i o n e r and the profession of medicine have acquired considerable power over the patient and over the p r a c t i c e of medicine re s p e c t i v e l y . In Chapter I I , the various mechanisms of ac c o u n t a b i l i t y were presented and discussed. Medical mal-pr a c t i c e l i t i g a t i o n i s notable i n t h i s respect i n that i t i s a mechanism 38 of s o c i a l a c c o u n t a b i l i t y rather than peer acc o u n t a b i l i t y . In addition, i t provides the patient with a mechanism of compensation f or medically caused i n j u r i e s and losses. Conclusions The r o l e of medical malpractice l i t i g a t i o n as a mechanism of medical account a b i l i t y i s secondary to i t s prime purpose of assigning the r e -s p o n s i b i l i t y for carrying the costs of i n j u r i e s and losses r e s u l t i n g from medical treatment. Medical ac c o u n t a b i l i t y i s , i n f a c t , one of several p o s i t i v e e f f e c t s r e s u l t i n g from t h i s j u d i c i a l compensation mechanism. Other e f f e c t s include the deterrence of s o c i a l l y unacceptable modes of p r a c t i c e , and q u a l i t y c o n t r o l over the pr a c t i c e of medicine. 39 FOOTNOTES - CHAPTER I I I 1. C e c i l A. W r i g h t and A l l e n M. L i n d e n , C a n a d i a n T o r t Law: C a s e s , Notes and M a t e r i a l s , 6 t h ed. ( T o r o n t o : B u t t e r w o r t h s , 1 975), p. 1. 2. C e c i l A. W r i g h t , Cases on t h e Law of T o r t s , ( T o r o n t o : B u t t e r w o r t h s , 1975), p. 1. 3. J o hn G. F l e m i n g , An I n t r o d u c t i o n to t h e Law of T o r t s , ( L o n d o n : O x f o r d U n i v e r s i t y P r e s s , 1 967), C h a p t e r 1. 4 . IBID , P- 4 . 5 . IBID, P • 7 . 6 . IBID , P- 8-9 . 7 . IBID, P • 9 . 8 . IBID , P- 16. 9 . IBID , P- 22 . 10. IBID , P • 16. 11. I t has been s u g g e s t e d by Calabresi:'- t h a t the p u r p o s e of a l l A c c i d e n t Law, i n c l u d i n g T o r t Law, s h o u l d be t h e m i n i m i z a t i o n of A c c i d e n t C o s t s . H i s t h e o r i e s a r e examined In C h a p t e r V I I . Guido C a l a b r e s i , The C o s t s of A c c i d e n t s , (New H a v e n : Y a l e U n i v e r s i t y P r e s s , 1970). 12. In 1972 t h e C a n a d i a n M e d i c a l P r o t e c t i v e A s s o c i a t i o n p r o v i d e d p r o t e c t i o n a g a i n s t m a l p r a c t i c e l i t i g a t i o n f o r 89% of the d o c t o r s i n Canada. See C h a p t e r V f o r d e t a i l s . 13. C a n a d i a n M e d i c a l P r o t e c t i v e A s s o c i a t i o n , C o n s t i t u t i o n and Bylaws (Ottawa, 1973), p. 6. 14. IBID. 15. F l e m i n g , An I n t r o d u c t i o n to t h e Law o f T o r t s , p. 22. 16. " L a w s u i t Awards Low i n Canada, U.S. Lawyer S a y s , " The T o r o n t o S t a r , 28 J u l y 1975, p. 3. 17. A l l e n M. L i n d e n , "The N e g l i g e n t D o c t o r , " Osgoode H a l l  Law J o u r n a l 11 ( J a n u a r y , 1973):31-39. 18. Hobson v. Munkley (1 9 7 7 ) , 14 O.R. (2d) 575 a t 583-587. 40 FOOTNOTES - CHAPTER I I I '.19.T.. M i l t o n Roemer, " C o n t r o l l i n g and P r o m o t i n g Q u a l i t y i n M e d i c a l C a r e , " Law and Contemporary P r o b l e m s 35 (March, 1970):284. 20. S t a t e m e n t o f Dr. A . J . Mannix, J r . to t h e New Y o r k S t a t e S e n a t e Committee on H e a l t h , I n s u r a n c e C o u n s e l J o u r n a l 38 ( A p r i l , 1971):208. 21. E l i B e r n z w e i g , "The M a l p r a c t i c e C r i s i s : A Government E x p e r t s View," I n s u r a n c e C o u n s e l J o u r n a l 39 ( J a n u a r y , 1972):24-26. 22. E l i o t F r e i d s o n , The P r o f e s s i o n of M e d i c i n e , (New Y o r k : Dodd Mead and Co., 1971) 24. O n t a r i o , R e p o r t of the Committee on t h e H e a l i n g A r t s , Queens P r i n t e r , 1971. 41 CHAPTER IV MEDICAL MALPRACTICE DEFINED The determination of whether a doctor's behaviour constitutes medi-c a l malpractice belongs to the courts. A review of the basis upon which such judgements are made, w i l l o u t l i n e the court's current p o s i t i o n with respect to medical malpractice. Formal court proceedings are i n s t i t u t e d by the p l a i n t i f f with the issue of a "writ of summons".''" The writ must include a concise summary of the p l a i n t i f f ' s claims and "causes of acti o n " known as "endorsement". "Cause of a c t i o n " has been defined by the courts as "every f a c t that i s 3 material to be proved to e n t i t l e the p l a i n t i f f to succeed". Due to the long experience of common law, "causes of a c t i o n " tend to f a l l into well defined areas. In the case of the law of t o r t s , these areas include trespass to person ( i . e . assault, battery), negligence, 4 trespass to land, nuisance, defamation, etc. Each area i s affe c t e d by c e r t a i n statutes (e.e. l i m i t a t i o n periods) and governed by the precedents pertaining to that area. The statement of the "cause of actio n " w i l l therefore determine the c r i t e r i a by which the claim w i l l be judged. I t may also influence the basis by which damages, i f any, may be awarded. The "cause of a c t i o n " of medical malpractice claims against doctors tends to f a l l under two areas: negligence and trespass to person. In t h i s section, the procedures and standards of the court i n i t s 42 judgement of what behaviour constitutes medical malpractice, w i l l be discussed. For t h i s purpose, the areas of "negligence" and "assault and battery" w i l l be treated separately. Each section w i l l commence with an o u t l i n e of the general l e g a l considerations of that area of the law followed by an examination of i t s a p p l i c a t i o n i n cases of medical mal-pr a c t i c e . Negligence Every form of a c t i v i t y c a r r i e s with i t the p o s s i b i l i t y of harm to others. The assignment of l i a b i l i t y for that harm i s i n d i c a t i v e that society views the r i s k s of that a c t i v i t y as being unreasonable. The continuation of that a c t i v i t y i n the l i g h t of i t s unreasonable r i s k s i s negligence. 1. Standard of Care The d i f f i c u l t y facing the law i s the determination of the point at which r i s k s become unreasonable and a c t i v i t i e s ' consequently negligent. I t i s a problem of balancing "the gravity of the r i s k created" against "the s o c i a l u t i l i t y of the conduct involved". As such, i t i s a subjective judgement and consequently, subject to differences of opinion. The law has attempted to solve t h i s problem by r e s o r t i n g to the model of the "reasonable man of ordinary prudence".~* The reasonable man of ordinary prudence i s "the embodiment of a l l the q u a l i t i e s which we demand of the good c i t i z e n : and i f not a model of perfection, yet altogether a rather better man than probably any s i n g l e one of us hap-pens or perhaps even aspires to be". This model, therefore, i s the 43 standard to which a l l i n d i v i d u a l s are required to conform. Negligence i n t h i s context has been defined as: "the omission to do something which a reasonable man guided upon the considerations which ordin -a r i l y regulate the conduct of human a f f a i r s would do, or doing something which a prudent and reason-able man would not do". Over time, the courts have made c e r t a i n q u a l i f i c a t i o n s to t h i s model. For example, c h i l d r e n are not expected to conform to t h i s standard, a l -though behaviour by adults i s not excused on account of lack of personal g experience and knowledge. Q u a l i f i c a t i o n s to t h i s model i n the area of medical negligence w i l l be discussed l a t e r i n the chapter. 2. The Elements of Negligence The courts have evolved a number of a r t i f i c i a l techniques or elements by which the issues i n a negligence claim are elucidated and decided. These elements are: (a) the establishment that a duty existed by the defendant towards the p l a i n t i f f ; (b) the establishment that a breach of that duty occurred by the defendant. (c) the establishment that material i n j u r y occurred to the i n t e r e s t s of the p l a i n t i f f ; (d) a proof of causation that the material i n j u r y to the p l a i n t i f f was the Result of the breach of duty by the defendant. (a) The Issue of Duty "A man i s e n t i t l e d to be as negligent as he pleases to the^whole world i f he owes no duty to them". The above quotation serves to emphasize the d i f f i c u l t y i n determining under what circumstances a duty of case e x i s t s . The c l a s s i c a l pronounce-ment of a general formula for duty i s J u s t i c e Atkin's "neighbour t e s t " 44 i n Donoghue vs. Stevenson: "There must be, and i s , some general conception of r e l a t i o n s giving r i s e to a duty of care, of which the p a r t i c u l a r cases found i n the books are but instances.... The r u l e that you are to love your neighbour becomes i n law, you must not i n j u r e your neighbour; and the lawyers question, Who i s my neighbour? receives a r e s t r i c t e d r eply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be l i k e l y to i n j u r e your neighbour. Who, then, i n law, i s my neighbour? The answer seems to be - persons who are so c l o s e l y and d i r e c t l y affected by my act that I ought reasonably to have them i n con-templation as being so af f e c t e d when I am d i r e c t i n g my mind to the^acts or omissions which are c a l l e d i n question". This test i s of l i m i t e d u t i l i t y , however, since i t requires a value judgement concerning the f o r e s e e a b i l i t y of events. As Fleming declares: "recognition of duty of care i s the outcome of a value judgement, that the p l a i n t i f f ' s invaded i n t e r e s t i s deemed worthy of l e g a l protection against negligent interference by conduct of the kind alleged against the defendant. In the decision, whether or not there i s a duty, many factors i n t e r p l a y : the hand of h i s t o r y , our ideas of morals and j u s t i c e , the convenience of administering the r u l e and OU.JJ s o c i a l ideas as to where the loss should f a l l " . I t i s notable that a breach of the duty of care towards one i n d i -v i d u a l cannot be used as grounds f o r a claim by another i n d i v i d u a l . The 13 l e g a l duty of the defendant, to take care, must be owed to the p l a i n t i f f . (b) The Issue of Breach of Duty The issue of breach of duty i s c l o s e l y r e l a t e d to the establishment of the existence of a duty. Breach of duty may be the r e s u l t of acts or omissions. Early common law only recognized acts of a f f i r m a t i v e misconduct 14 as grounds for compensation for i n j u r i e s . Inaction was viewed as being too remote a focus for imposing l e g a l r e s p o n s i b i l i t y . This doctrine i s slowly being revised as the court recognizes omission of action as grounds 45 for negligence. However, i n the absence of some e x i s t i n g duty, there i s no o b l i g a t i o n for an i n d i v i d u a l to act. For example, where a p l a i n t i f f i s endangered by a source quite unconnected with the defendant, the l a t t e r has no o b l i g a t i o n to come to h i s assistance."*""' (c) The Issue of M a t e r i a l Injury In the absence of material i n j u r y , the p l a i n t i f f has no grounds for damages i n s p i t e of the negligence of the defendant. The d i f f i c u l t y facing the courts has been the determination of what constitutes material i n j u r y . They have tended to only accept s i t u a t i o n s of obvious ph y s i c a l i n j u r y as f i n a n c i a l l o s s . More recently, however, les s apparent i n j u r i e s such as mental anguish or nervous shock found acceptance as evidence-of material injury."*"^ (d) The Issue of Causation The issue of causation, commonly known as "remoteness of damage" or "proximate cause" presents considerable problems to the court. The d i f -f i c u l t y l i e s i n determining whether the breach of duty or negligence by the defendant was responsible for the material i n j u r y to the p l a i n t i f f . Unlike a s c i e n t i f i c proof, where hypotheses are tested through the r e s u l t s of numerous t r i a l s , l e g a l proof of causation i s concerned only with the case at hand: whether i n t h i s p a r t i c u l a r case the evidence indicates that the a c t i v i t i e s of the defendant resulted i n the material in j u r y to the p l a i n t i f f . S c i e n t i f i c proof, therefore, i s of l i m i t e d u t i l i t y i n the determination of causation i n a negligence case. The commonly u t i l i z e d test of causation i s known as causa sine qua non or the "but f o r " test."*"^ "The formula postulates that the defendant's 46 f a u l t i s a cause of the p l a i n t i f f ' s harm i f such harm would not have occurred without (but for) i t . Conversely, i t i s not a cause i f the 18 harm would have happened j u s t the same, f a u l t or no f a u l t " . The "but f o r " test c l e a r l y does not reduce the degree of supposition of causation frequently required i n negligence cases. I t does, however, provide a focus for e l u c i d a t i n g the issue of causation. The establishment that the defendant's negligence was a causal factor i n the p l a i n t i f f ' s i n j u r y , does not ne c e s s a r i l y lead to f u l l l e g a l l i a b i l i t y . The courts have been moving i n the d i r e c t i o n of a s c r i b i n g l i a b i l i t y 119 only for damages which could have been foreseen. The issue of f o r e -s e e a b i l i t y , however, necessitates a value judgement which makes consistency i n awarding damages impossible. 3. Burden of Proof As previously mentioned, i t i s the r e s p o n s i b i l i t y of the p l a i n t i f f to prove negligence, not the r e s p o n s i b i l i t y of the defendant to disprove i t . Since the defendant may be the only i n d i v i d u a l able to show the true cause of the accident, the p l a i n t i f f may face extreme hardship i n proving his case. The p r i n c i p l e of res ipsa l o q u i t u r (the thing speaks for i t -s e l f ) a s s i s t s i n d i s p e l l i n g t h i s hardship. Under t h i s p r i n c i p l e , the p l a i n t i f f must f i r s t show that "the t h i n g . . . . i s under the management of the defendant" and that "the accident i s such as i n the ordinary course of things, does not happen i f those who have the management use the proper 20 care". When these two factors have been established, the p l a i n t i f f i s e n t i t l e d to have the case submitted for judgement. The defendant i s then 47 responsible for persuading the jury that he was i n no way negligent i n causing the accident. In other words, the burden of proof i s p a r t i a l l y s h i f t e d from the p l a i n t i f f to the defendant. 4. L i m i t a t i o n of Action A l l Canadian j u r i s d i c t i o n s l i m i t the time i n which a t o r t a ction may be commenced. Williams outlines the t r a d i t i o n a l j u s t i f i c a t i o n for t h i s l i m i t a t i o n as follows: "(1) I t i s thought improper to subject a p o t e n t i a l defendant i n d e f i n i t e l y to the p o s s i b i l i t y of being found l i a b l e to pay damages. I t i s often thought that a s t a l e claim may have more i n -j u s t i c e than j u s t i c e i n i t " . "(2) Most actions for personal i n j u r i e s depend to a great extent upon the testimony of witnesses and the r e c o l l e c t i o n of such witnesses i n -evitably become less c r e d i b l e " . 21 "(3) Other evidence tends to disappear". The l i m i t a t i o n period throughout Canada for the Tort of negligence i s generally 6 years. This period of l i m i t a t i o n , however, may be modified by l e g i s l a t i o n pertaining to s p e c i f i c categories of negligence. The Negligent Doctor The above section outlines the general approach of the l e g a l system i n handling the issue of negligence. The a p p l i c a t i o n of t h i s approach to medical malpractice w i l l be presented i n t h i s section. It has frequently been contended that s p e c i a l care should be taken i n the handling of claims of medical negligence. A notable observation i n t h i s respect i s that of Denning i n Roe and Wolley vs. M i n i s t r y of 48 Health: " I t i s so easy to be wise a f t e r the event and to condemn as negligence that which was only mis-adventure. We ought always to be on guard against i t e s p e c i a l l y i n cases against hospit a l s and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by con-siderable r i s k s . Every s u r g i c a l operation i s attended by r i s k s . We cannot take the benefits without;', taking the r i s k s . Every advance i n technique i s also attended by r i s k s . Doctors, l i k e the r e s t of us, have to learn by experience; and experience often teaches i n a hard way. Some-thing goes wrong aj|d shows up a weakness and then i t i s put r i g h t " . He l a t e r concluded his judgement with these words: "But we should be doing a d i s s e r v i c e to the community at large i f we were to impose l i a b i l i t y on ho s p i t a l s and doctors for everything that appears to go wrong. Doctors would be led to think more of th e i r own safety than of the good of t h e i r patients. I n i t i a t i v e would be s t i f l e d and confidence shaken. A proper sense of proportion requires us to have regard to the conditions i n which h o s p i t a l s and doctors have to work. We must i n s i s t on due care for the patient at every point, but we must not condemn as negligence that which i s only misadventure". These statements have since been quoted i n numerous judgements i n 24 Canada, and i n a sense, they have set the tone f o r the courts' approach to claims for medical malpractice. The tone has been one of conservatism i n which the doctor's l i a b i l i t y has been contained rather than expanded as i n the U.S.A. 1. Standard of Care Chief J u s t i c e Tindal i n 1838 a r t i c u l a t e d the following p r i n c i p l e which survives to t h i s day: "Every person who enters a learned profession undertakes to bring to the exercise of i t a reasonable degree of care and s k i l l . He does not undertake, i f he i s an attorney, that at a l l events you w i l l gain your cause; 49 nor does a surgeon undertake that he w i l l perform a cure; nor does he undertake to use higher education and greater advantages than he has, but he undertakes to bring^a f a i r , reasonable, and competent degree of s k i l l " . " The medical p r a c t i t i o n e r , therefore, i s obligated to exercise "a reasonable degree of care and s k i l l " . Schroeder i n a frequently quoted judgement of the Ontario Court of Appeal, was more s p e c i f i c when he asserted: "He i s bound to exercise that degree of care and s k i l l which could reasonably be expected of a normal, prudenl^ p r a c t i t i o n e r of the same experience and standing....". The model of the "reasonable man of ordinary prudence" gives way to the model of the "reasonable p r a c t i t i o n e r of ordinary prudence", the type of p r a c t i t i o n e r being determined by the defendant's q u a l i f i c a t i o n s . S p e c i a l i s t s are therefore expected to perform at a l e v e l consistent with t h e i r s p e c i a l t y ; a l e v e l higher than the general p r a c t i t i o n e r . This p r i n c i p l e was enunciated by Mr. J u s t i c e Schroeder as follows: " . . . . i f he holds himself out as a s p e c i a l i s t , a higher degree of s k i l l i s required of him than of one who does not profess to be2SO q u a l i f i e d by s p e c i a l t r a i n i n g and a b i l i t y " . Thus "The surgeon, by h i s ordinary engagement with the patient undertakes....(to possess) the s k i l l s , knowledge and judgement of the generality, or average of the s p e c i a l group or class of tech-nicians to whictjghe belongs and.... (to) f a i t h f u l l y exercise them". Although a s p e c i a l i s t i s expected to maintain a higher standard of care than a general p r a c t i t i o n e r , he i s not expected to achieve p e r f e c t i o n . Thus, a dermatologist escapes r e s p o n s i b i l i t y i f the procedure he adopts i s i n "accordance with generally accepted good medical p r a c t i c e i n the 29 f i e l d of dermatology". In turn, no l i a b i l i t y ensues i f an unsuccessful 50 operation i s conducted i n a way "consistent with good orthopedic s u r g i c a l ^. ..30 practxce . The above two examples are i n d i c a t i v e of the strength placed by the courts i n the standard of "custom" or "common p r a c t i c e " i n medical mal-pr a c t i c e cases. As Linden i n d i c a t e s : "Understandably, evidence of general p r a c t i c e i s accorded more respect i n medical matters than i t receives i n other types of cases, because there i s greater j u d i c i a l t r u s t i n the reasonableness of a s i s t e r profession than there i s i n the methods of commercial men. Further, i n the professional cases, the contractural undertaking made^is only to employ customary treatment methods". A defence against medical negligence, based on customary professional 32 p r a c t i c e , however, i s not conclusive. The courts have recognized that i n the f i n a l outcome, they, not the profession of medicine, are responsible 33 for determining acceptable standards of medical care. Nevertheless, customary p r a c t i c e remains the doctor's surest defence and i t only i n exceptional circumstances, where the p r a c t i c e i s c l e a r l y improper, that the courts r u l e against i t . The so-called " l o c a l i t y r u l e " although generally d i s l i k e d has not been completely rejected by the courts. The r u l e provides that a doctor must "merely l i v e up to the standard of the profession i n h i s own com-3 A munity or s i m i l a r l o c a l i t i e s " . Chief J u s t i c e Falconbridge c r i t i c i s e d the " l o c a l i t y r u l e " as long ago as 1902 on the grounds that: " a l l the men p r a c t i s i n g i n a given l o c a l i t y might be equally ignorant and behind the times and regard must be had to the present advanced state of the profession and to the easy means of communication with, and access to, the^large centres of education and science...." In e f f e c t , the l o c a l i t y r u l e has created dual standards of care with 51 r u r a l areas subject to a lower standard than urban areas. Linden contends that the d i f f e r e n c e between urban and r u r a l areas i s no longer one of 36 "standard of care" but one of "access to f a c i l i t i e s and equipment". An allowance should be made for t h i s d i f f e r e n c e , but not one which creates a double standard f o r Canadian doctors bases on geography. The issue of whether a doctor i s obliged to consult a s p e c i a l i s t i f a reasonably prudent doctor would consider i t necessary, i s s t i l l questionable. In one notable case, a doctor f a i l e d to c a l l i n a s p e c i a l i s t , despite the 37 urgings of h i s patient, since he f e l t such action was premature. The action was dismissed even though the judge had indicated that "most medi-c a l men would have" c a l l e d i n a s p e c i a l i s t . Linden contends that: "Because s p e c i a l i s t s are more numerous these days, general p r a c t i t i o n e r s tend to r e l y upon them more than ever. L i a b i l i t y should follow i f a doctor f a i l s to c a l l i n a s p e c i a l i s t when a prudent p r a c t i t i o n e r would deem i t advisable". In conclusion, the medical p r a c t i t i o n e r i s required to exercise a reasonable degree of care and s k i l l so that he performs up to the standard of care of the average p r a c t i t i o n e r of h i s s p e c i a l t y . In general, but not always, conformity to the customary practices of the profession i s proof of maintenance of t h i s standard of care. 2. Elements of Medical Negligence As with a l l negligence, the p l a i n t i f f i n a medical negligence s u i t must e s t a b l i s h that h i s material i n j u r y was a r e s u l t of the defendant's breach of duty. The issues of "duty", "breach of duty", "material i n j u r y " and "causation" deserve to be examined i n r e l a t i o n to medical negligence. (a) The Issue of Duty A doctor owes no duty to a p o t e n t i a l patient u n t i l a doctor/patient 52 39 r e l a t i o n s h i p has been established. This r e l a t i o n s h i p may be extremely easy to form as i n the case when a doctor approaches an accident v i c t i m . Nevertheless, a doctor i s under no l e g a l duty to accept a p a r t i c u l a r person as a patient even i f he has treated that i n d i v i d u a l i n a previous 40 but unconnected i l l n e s s . Once a doctor/patient r e l a t i o n s h i p has been established, however, the doctor i s obliged to continue t r e a t i n g the patient as long as the 41 case requires a t t e n t i o n . This o b l i g a t i o n may be terminated by a j o i n t agreement l i m i t i n g the duration of service, by the patient discharging 42 the doctor or by the doctor v o l u n t a r i l y withdrawing from the case. In the l a t t e r s i t u a t i o n , the doctor must give the patient reasonable notice 43 to enable him to secure a l t e r n a t i v e treatment. (b) The Issue of Breach of Duty In a l l negligence claims, the p l a i n t i f f must e s t a b l i s h that a breach of duty occurred by the defendant. The p l a i n t i f f i n a medical negligence s u i t must therefore show that the defendants did not conform to or surpass acceptable standards of medical care. These standards have been b r i e f l y reviewed i n the previous section "Standard of Care". The d i f f i c u l t y facing the p l a i n t i f f , i s to prove i n unmistakable . terms that the doctor's actions were substandard. With the court's strong dependence on the standard of customary p r a c t i c e , t h i s proof generally requires the assistance and co-operation of medical witnesses. Although i n recent years, doctors i n Canada have shown a greater willingness to a s s i s t l i t i g a n t s i n a malpractice action, most doctors are exceedingly hesitant to condemn the action of one of t h e i r colleagues. The l i t i g a n t , therefore, may have to depend on the testimony of the defendant's medical 53 witnesses to e s t a b l i s h that the defendant deviated from the accepted standard of care. (c) The Issue of Material Injury No matter how negligent a doctor may have been, a patient w i l l lose his case unless he can e s t a b l i s h to the courts, s a t i s f a c t i o n that damage or loss has occurred. Although t r a d i t i o n a l l y , only d i r e c t physical damage was considered evidence of material i n j u r y , l e s s apparent i n j u r i e s 44 such as mental anguish have recently been accepted. (d) The Issue of Causation The establishment that the defendant's breach of duty res u l t e d i n the p l a i n t i f f ' s material loss can present considerable d i f f i c u l t i e s i n a medical malpractice s u i t . The complex nature of medical treatment where numerous factors and influences are i n operation, makes the d e f i n i t i v e determination of cause/ e f f e c t r e l a t i o n s h i p s d i f f i c u l t at the best of times. This i s compounded by the f a c t that medicine i s s t i l l as much an a r t as a science. As with the establishment of a breach of duty, the establishment of causation usually requires expert testimony from medical witnesses. The d i f f i c u l t y i n obtaining sympathethic medical witnesses again adds to the d i f f i c u l t y i n e s t a b l i s h i n g f a u l t by the p l a i n t i f f . 3. Burden of Proof From the previous discussion, i t i s obvious that i n many medical malpractice cases, i t i s impossible to e s t a b l i s h d i r e c t evidence of f a u l t . The a l t e r n a t i v e open to the p l a i n t i f f i s to invoke the doctrine of res 54 ipsa loquitur (the thing speaks for i t s e l f ) . In the past, i t was believed that t h i s p r i n c i p l e did not apply to medical malpractice actions. Although more recently the r u l e has been applied, i t i s s t i l l the exception rather than the r u l e . As recently as 1974, R i t c h i e declared that: " I t appears to me that i n medical cases where differences i n expert opinion are not unusual and the sequence of events often appears to have brought about a r e s u l t which has never occurred i n exactly the same way before to the knowledge of the most experienced doctors, great caution should be exercised to ensure that the r u l e embodied i n the maxim res ipsa l o q u i t u r i s not to be construed so as to place too heavy a burden on the defendant. Each such case must of necessity, be determined according to i t s own fa c t s and i t seems to me that the r u l e should never be applied i n such cases by t r e a t i n g the fac t s of one case as c o n t r o l l i n g the r e s u l t another, however, s i m i l a r those fa c t s may be". Even i n cases where the r u l e has been invoked, often l i t t l e benefit has accrued to the p l a i n t i f f f o r according to Schroeder: "when the r u l e applies, i t s e f f e c t i s to s h i f t the onus to the defendant but....broadly speaking, i n such cases, where the defendant produces an explanation equally consistent with negligence and no negligance, the burden of e s t a b l i s h i n g negligence s t i l l remains with the p l a i n t i f f " . 4. L i m i t a t i o n of Action In 1887, a section of the Ontario Medical Act was amended so that: "no duly registered member of the College of Physicians & Surgeons of Ontario, s h a l l be l i a b l e i n any action for negligence or malpractice, by reason of professional services requested or rendered, unless such action be commenced within one year from the date when i n the  matter complained of such professional services terminated" Subsequently, a l l other provinces i n Canada adopted t h i s or a s i m i l a r 55 , . . . . . 48 l i m i t a t i o n p r o v i s i o n . The above provision severely l i m i t s the patient i n the pursuit of a claim. Sharpe, i n h i s review of the l i m i t a t i o n period i n medical mal-pr a c t i c e cases, c i t e s many j u s t i f i e d cases which were rejected due to 49 the period of l i m i t a t i o n running out. The c l a s s i c case i s where a doctor, i n performing an operation, leaves a foreign object, such as a s u r g i c a l swab within the body. Frequently, the presence of th i s object i s not discovered u n t i l a f t e r the period of l i m i t a t i o n has been passed. In 1974, the l i m i t a t i o n period for malpractice actions i n Ontario was revised with the assent of the Health D i s c i p l i n e s Act. This act now declares that: "No duly registered member of a College i s l i a b l e to any actions a r i s i n g out of negligence or mal-p r a c t i c e i n respect of professional services requested or rendered unless such action i s commenced within one year from the date when the person commencing the action knew or ought to have known the fac t or fac t s upon^which he alleges negligence or malpractice". This change provides a greater opportunity to the p l a i n t i f f to pursue h i s or her claim. The determination of the date of commencement of the l i m i t a t i o n period, however, promises to present great d i f f i c u l t i e s to the court. I t i s notable that the provision applies not only to the patient but to "the person commencing the act i o n " . Trespass to the the Person The action of trespass to the person i s known under the heading of "assault and battery". Assault consists of " i n t e n t i o n a l l y creating i n another person an 56 52 apprehension of imminent harmful or offensive contact". The intent to do violence must be expressed i n threatening acts, not merely i n threatening speech. Even threatening acts do not constitute an assault unless they are of such a nature to put the p l a i n t i f f i n fear or ap-prehension of immediate violence. "The a p p l i c a t i o n of force to the person of another without lawful 53 j u s t i f i c a t i o n amounts to the wrong of battery". I t does not matter with what force the contact was made and judgements have been made for 54 s p i t t i n g i n another man's face, cutting h i s h a i r or k i s s i n g a woman. Contact conforming with accepted usages of d a i l y l i f e are no cause for complaint unless they are conducted i n a h o s t i l e manner or i t i s recognized that they would be resented by the p l a i n t i f f . Assault may either be i n t e n t i o n a l or unintentional. In the l a t t e r case, i t must be proved that the unintentional contact was the r e s u l t of negligence by the defendant. The most frequent defence to a claim for assault and battery i s consent. The contends that "no wrong i s done to one who consents" — v o l e n t i non f i t i n j u r i a . C o n s e n t may be given expressly, as when a patient authorizes a surgeon to perform an operation, or implied as i n the case of p a r t i c i p a t i o n i n sporting games or simply walking i n a crowd. Medical Trespass to the Person C l e a r l y , any action by the doctor i n handling the patient could be construed as "battery". A j u s t i f i a b l e cause, or a consent for the action of the doctor i n touching the patient i s therefore required. The voluntary presence of a patient i n a doctor's o f f i c e or h o s p i t a l 57 implies a consent to r e l a t i v e l y minor procedures. As Rozovsky points out, " i f there were no damages and the touching of the patient was minor and part of the general treatment, i t i s probable that an assault a c t i o n would not be taken, or that i t would be thrown out of court as an abuse of the court's p r o c e s s " . M o r e complex procedures, however, should require a consent. In f a c t , i n several Canadian provinces, i t i s a regulation of the Public Hospital Act or s i m i l a r l e g i s l a t i o n that no s u r g i c a l operation s h a l l be performed on a patient unless a consent i n w r i t i n g for the performance of the operation has been signed by the 58 patient or h i s guardian. The signing of a written consent, however, i s not necessarily v a l i d since i t i s the circumstances i n which consent was obtained, rather than the consent i t s e l f which i s important. Rozovsky defines f i v e c r i t e r i a which must be met i f a consent i s to be l e g a l l y i -A 5 9 v a l i d . 1. Voluntary Consent The consent must be given v o l u n t a r i l y under such conditions that the patient f e e l s free to either consent or refuse as he so wishes. A consent obtained under conditions of compulsion, duress, or fraudulent misrepresentation, i s i n v a l i d . 2. Informed Consent The patient must be aware of the nature and implications of the procedure for which he i s consenting. Canadian courts, unlike those i n the U.S., have not defined s t r i c t rules for-informing the patient but require that the information be honest. There i s no necessity for a physician to explain i n d e t a i l the actual medical techniques being used 58 as long as the nature of the treatment i s f u l l y understood.° U I t should be noted that informed consent, i n e f f e c t , transfers the r e s p o n s i b i l i t y for decision making and consequently, the r e s p o n s i b i l i t y for r i s k taking from the doctor to the patient. F a i l u r e to adequately inform the patient of the p o s s i b i l i t y of an unsuccessful or in j u r i o u s outcome places an increasing l i a b i l i t y on the physician. In the U.S.A. thi s f a i l u r e i s increasingly being treated under the cause of action of negligence ( i . e . breach of duty of care, leading patient to accept harm-f u l treatment he would have declined i f he had been adequately informed) rather than the cause of action of assault and battery.^"*" 3. Consent to Act Performed The nature of treatment should follow as c l o s e l y as possible to the consent given. This does not prevent the doctor from exercising h i s professional judgement a f t e r the consent has been made. In non-emergency s i t u a t i o n s , however, a d d i t i o n a l consent should be obtained i f there i s a r a d i c a l departure from the proposed mode of • treatment. , 4. Consent to a P a r t i c u l a r Person Touching A consent implies that a p a r t i c u l a r i n d i v i d u a l has been given permission to handle the patient. In cases where no assurance can be made that some other person may handle the patient, the patient should be informed of t h i s f a c t . 5. Capable of Consent The patient must have the l e g a l capacity to consent. He must be of s u f f i c i e n t age to be c l a s s i f i e d an adult. Although the age of majority has been considered the age at which i n d i v i d u a l s are capable of consenting, 59 many provinces have adjusted t h i s age i n the case of medical treatment ( i . e . i n Ontario, i t i s 16 years of age). A d d i t i o n a l l y , the courts have recognized consents of minors who are emancipated from t h e i r parents. Patients under p s y c h i a t r i c care who are considered unsound of mind present d i f f i c u l t i e s when consent for treatment i s required. As Rozovsky points out: "Public trustees are not usually given power over the person of a patient but over h i s estate only. Thus, consent cannot be given by t h i s o f f i c i a l . S i m i l a r l y , mental health l e g i s l a t i o n usually does not give the d i r e c t o r or administrator of a mental h o s p i t a l the powgjj of guardianship over the person of h i s patient". Since guardianship proceedings are frequently c o s t l y , consent i s usually obtained from r e l a t i v e s and h o s p i t a l administrators. In cases of emergency, when the patient i s unable to consent due to h i s or her condition, consent i s not required. The doctor must show, however, that " i t was not possible to obtain the patient's consent and that the procedure was immediately necessary to preserve the health and 63 l i f e of the patient". Conclusions In Canada, medical malpractice claims have been pursued through the causes of action of "negligence" and "assault and battery". A doctor i s considered negligent i f he f a i l s to exercise on behalf of h i s patient a reasonable degree of care and s k i l l as could be expected of a normal prudent p r a c t i t i o n e r of the same experience and standing. Before a judgement of negligence can be made, however, the p l a i n t i f f must show that: (a) a doctor/patient r e l a t i o n s h i p existed; 60 (b) that the patient suffered some material in j u r y as a r e s u l t of the doctor's substandard care and s k i l l ; and (c) the period of l i m i t a t i o n of action has not been exceeded. The p l a i n t i f f faces come d i f f i c u l t i e s i n pursuing h i s or her claim since the doctrine of res ipsa loquitur i s seldom invoked i n medical malpractice cases. In addition, the p l a i n t i f f may have d i f f i c u l t y obtaining expert medical witnesses to support h i s or her case. In a medical malpractice case, "assault and battery" has occurred i f the doctor touches a patient without obtaining h i s or her consent. In order for a consent to be v a l i d , i t must be informed and given v o l u n t a r i l y by an i n d i v i d u a l capable of consenting. There are c l e a r l y advantages to following the cause of "assault and battery" as compared to "negligence". In "assault and battery", f a u l t does not have to be shown nor i s i t necessary for any material in j u r y to have b e f a l l e n the p l a i n t i f f . 61 FOOTNOTES - CHAPTER TV 1. G a r r y D. Watson, S t e p h e n B o r i n s and N e i l W i l l i a m s , C a n a d i a n C i v i l P r o c e d u r e , ( T o r o n t o : B u t t e r w o r t h s , 1973), p. 191. 2. IBID, p. 3. 3. T a y l o r V. R e i d 3 ( 1 9 0 6 ) , 130 L.R. 205. 4. John G. F l e m i n g , The Law o f T o r t s , 5 t h ed. (Sydney: The Law Book Company L t d . , 1971). 5. IBID, p. 107. 6. IBID. 7. S u l l i v a n v. M c W i l l i a m s ; (1893) 20 O.A.R. 627. 8. F l e m i n g , The Law of T o r t s , p. 112. 9. IBID, p. 104. 10. L e L i e v r e v. G o u l d ( 1 8 9 3 ) , 1 Q .B . 491 a t 497. 11. Donoghue v. S t e v e n s o n ( 1 9 3 2 ) , A.C. 562 a t 580. 12. F l e m i n g , The.Law o f T o r t s , p. 137. 13. IBID, p. 139. 14. IBID, p. 140. 15. IBID, p. 141. 16. A r r a m z i k e t a l . v. B r e n n e r et a l . ( 1 9 6 7 ) , 65 D.L.R. (2d).651 17. F l e m i n g , The Law o f T o r t s , p. 180. 18. IBID. 19. IBID, p. 190. 20. R.F.V. H e u s t o n , Salmond on t h e Law of T o r t s , (London: Sweet and M a x w e l l , 1973), p. 241. 21. Jeremy S. W i l l i a m s , L i m i t a t i o n s of A c t i o n s i n Canada, ( T o r o n t o : B u t t e r w o r t h s , 1972), p. 55. 22. Roe v. M i n i s t r y o f H e a l t h , Wooley v. M i n i s t r y o f H e a l t h , (1954) 2 Q.B. 66 a t 83. 23. IBID, p. 86. 62 FOOTNOTES - CHAPTER IV 24. J o h n s t o n v . W e l l e s l e y H o s p i t a l ( 1 9 7 1 ) , 2 O.R. 108 ; C r i t s v. S y l v e s t e r ( 1 9 5 6 ) , O.R. 132. 25. Lamphie v. P h i l p o s ( 1 8 3 8 ) , 8 C&P 475 a t 478. 26. C r i t s v. S y l v e s t e r , (1956), O.R. 132 a t 143. 2 7. IBID. 28. W i l s o n v. Swanson (1956), S.C.R. 804 a t 811. 29. J o h n s t o n v. W e l l e s l e y H o s p i t a l ( 1 9 7 1 ) , 2 O.R. 108 a t 116. 30. O s t r o w s k i v. L o t t o (1969), 1 O.R. 344 a t 381. 31. A l l e n M. L i n d e n , "The N e g l i g e n t D o c t o r , " Osgoode H a l l Law  J o u r n a l 11 ( J a n u a r y , 1973):32. 32. A n d e r s o n v. Chasney, ( 1 9 4 9 ) , 4 D.L.R. 71. 33. Penner v. T h e o b a l d . ( 1 9 6 2 ) , 35 D.L.R. (2d) 700 a t 712. 34. L i n d e n , "The N e g l i g e n t D o c t o r , " p. 36. 35. Town v. A r c h e r ( 1 9 0 2 ) , 4 O.L.R. 383 a t 388. 36. L i n d e n , "The N e g l i g e n t D o c t o r , " p. 37. 37. J a r v i s v. I n t e r n a t i o n a l N i c k e l L t d . , (1928-1929), 63 O.L.R. 564 . 38. L i n d e n , "The N e g l i g e n t D o c t o r , " , p. 38. 39. B r i a n J . Thompson, " C l a i m s A r i s i n g Out of t h e R e l a t i o n s h i p Between D o c t o r and P a t i e n t , " Law S o c i e t y of Upper Canada  S p e c i a l L e c t u r e s , 1963, p. 188. 40. IBID, p. 189. 41. IBID. 42. IBID. 43. IBID. 44. S.G.M. Grange, "The S i l e n t D o c t o r v. The Duty to Speak," Osgoode H a l l Law J o u r n a l 11 ( J a n u a r y , 1973):81. 45. C r i t s v. S y l v e s t e r ( 1 9 5 6 ) , O.R. 132 a t 145. 63 FOOTNOTES - CHAPTER IV 46. IBID. 47. O n t a r i o , An A c t to Amend the O n t a r i o M e d i c a l A c t , S t a t u t e s o f O n t a r i o , 1887, C.24. 48. G i l b e r t S. Sharpe, " P e r i o d s o f L i m i t a t i o n and M e d i c a l M a l p r a c t i c e : A New A c t f o r O n t a r i o , " C h i t t y ' s Law J o u r n a l 23 (1975):145-155. 49. IBID, p. 145. 50. P i e r c e v. S t r a t h r o y H o s p i t a l (1924-1925), 27 O.W.N. 180. 51. O n t a r i o , H e a l t h D i s c i p l i n e s A c t , S t a t u t e s o f O n t a r i o , 1974, C.47, s . 17. 52. F l e m i n g , Law of T o r t s , p.24. 53. IBID, p. 23. 54. IBID. 5 5. IBID. 56. IBID, p. 77. 57. L o m e E. R o z o v s k y , " C o n s e n t to T r e a t m e n t , " Osgoode H a l l  Law J o u r n a l 11 ( J a n u a r y , 1973):103-113. 58. F o r Example s e e , O n t a r i o , P u b l i c H o s p i t a l s A c t , R e v i s e d S t a t u e s of O n t a r i o , 1970, c.378, s.39 ( l ) ( o a ) . 59. R o z o v s k y , " C o n s e n t to T r e a t m e n t , " p. 107. 60. IBID, 61. A l a n M e i s e l , "The E x p a n s i o n of L i a b i l i t y f o r M e d i c a l A c c i d e n t s : From N e g l i g e n c e to S t r i c t L i a b i l i t y by Way o f I n f o r m e d C o n s e n t , " N e b r a s k a Law Review 56 ( J a n u a r y , 1977): 51-152. 62. R o z o v s k y , " C o n s e n t to T r e a t m e n t , " p. 111. 63. IBID, p. 112. 64 CHAPTER V THE PROCESS AND EXTENT OF MEDICAL MALPRACTICE LITIGATION IN CANADA In t h i s chapter, an examination w i l l be made of the process of medi-c a l malpractice l i t i g a t i o n . In addition, past trends i n the amount and cost of l i t i g a t i o n w i l l be presented. The Process of Medical Malpractice L i t i g a t i o n Every doctor-patient encounter has the p o t e n t i a l to develop into a medical malpractice s u i t or claim. The fact that t h i s occurs infrequently (see analysis on Page ), i s i n d i c a t i v e that b a r r i e r s e x i s t to malpractice actions. I t would be hoped that the most s i g n i f i c a n t b a r r i e r i s that the patient i s s a t i s f i e d or has no complaint concerning h i s encounter with the doctor. In f a c t , i t would be hoped that the patient both f e e l s and ac t u a l l y has benefited from the encounter. 1. The Process - An Overview Figure II i s an expansion of the flow chart of the process of medi-c a l a c c o u n t a b i l i t y (presented i n Chapter I) with a s p e c i f i c focus on medical malpractice l i t i g a t i o n . I t presents an out l i n e of the basic decision making process by which medical malpractice s u i t s develop. Although i t does not present every possible permutation i n development of a malpractice claim, i t does out l i n e a l l the major decisions which lead toward l i t i g a t i o n . I t consequently presents a useful t o o l for examining the process of medical^ malpractice l i t i g a t i o n . Of p a r t i c u l a r 65 Figure 2 - Flow Chart of the Process of a Medical Malpractice Suit. (Start ) > f Doctor Patient Encounter 66 Figure 2 (continued) Patient and Counsel Contact Doctor Patient and Counsel seek Compensation tfo Stop 7 Court Proceedings No . Court Proceedings r r Court Awards Damages 67 i n t e r e s t are the points where the action ceases (where the flow chart indicates "STOP"). It w i l l be useful to examine each of these points and hypothesize the possible causes for the cessation of acti o n . STOP 1 The a c t i o n commences with the doctor-patient encounter. As was discussed i n Chapter I I , i f the patient i s to take further action, he must be d i s s a t i s f i e d with some aspect of the encounter. Cessation of action at STOP 1 i s i n d i c a t i v e of patient s a t i s f a c t i o n . I t should be noted that patient s a t i s f a c t i o n may be unfounded, and the patient may have been harmed by the encounter; however, i f the patient i s s a t i s f i e d , i t i s u n l i k e l y that he w i l l take further a c t i o n . ^ STOP 2 I f the patient has been d i s s a t i s f i e d with the encounter, he must now decide whether to take further action. F a i l u r e to take further action may be based on temporal considerations i n that the i n d i v i d u a l i s unwilling to spend time pursuing the matter. On the other hand, the i n d i v i d u a l may be ignorant of the possible channels of action open to him. STOP 3 If an i n d i v i d u a l i s aware that mechanisms ex i s t for resolving h i s d i s s a t i s f a c t i o n , he may pursue these mechanisms. In Chapter I I , these various mechanisms were presented and discussed. The action ceases at STOP 3, therefore, when s a t i s f a c t i o n i s obtained through one of the al t e r n a t i v e mechanisms of medical a c c o u n t a b i l i t y presented i n Chapter I I . STOP 4 If the patient remains d i s s a t i s f i e d , he may choose to take his case 68 to a lawyer. He may, however, be unaware that l e g a l recourse i s a v a i l a b l e or f e e l intimidated by the l e g a l structure and choose not to consult a lawyer. F i n a l l y , the p o t e n t i a l f i n a n c i a l expense may deter him from taking l e g a l a c t i o n . STOPS 5 & 6 The patient consults a lawyer and depending on the f a c t s of the case, the lawyer may recommend continuing or ceasing further action. C l e a r l y , the lawyer w i l l recommend no further action i f the case has no l e g a l j u s t i f i c a t i o n . In addition, the lawyer w i l l probably inform the c l i e n t of the l i k e l y f i n a n c i a l cost of further action. On the basis of the above arguments, the patient may choose to follow or disregard the lawyer's recommendation. Consequently, lack of l e g a l j u s t i f i c a t i o n and f i n a n c i a l cost may be responsible for STOP 5 and 6. STOP 7 If the patient decides to take l e g a l action, he or h i s l e g a l representative w i l l request compensation from the doctor. The doctor w i l l probably have l e g a l counsel which i n most cases, would be provided by the Canadian Medical P r o t e c t i v e Association. If the doctor does not admit l i a b i l i t y and refuses to negotiate a settlement, the patient must decide whether or not to take h i s claim to court. The reasons for deciding against further action at this time would ei t h e r be f i n a n c i a l or lack of l e g a l j u s t i f i c a t i o n . STOPS 8 & 9 If the doctor accepts l i a b i l i t y , he w i l l make a settlement o f f e r . This may be accepted by the patient or negotiations may occur u n t i l a mutually agreeable settlement i s reached. STOP 8 i s the point at which 69 such a settlement i s reached. If the patient i s d i s s a t i s f i e d with and refuses to accept the doctor's f i n a l settlement o f f e r , he must decide whether or not to commence court proceedings. The patient may have misgivings about the cost of further l e g a l proceedings and decide not to take the case to court. In t h i s case, he w i l l probably again seek a settlement o f f e r from the doctor. In the u n l i k e l y event that he does not seek a f i n a l agreement for settlement, STOP 9 occurs. STOPS 10 & 11 Court proceedings may develop either because the doctor refuses to assume r e s p o n s i b i l i t y f o r the patient's loss or because the doctor's settlement o f f e r f a l l s below the patient's expectations. Once court proceedings have commenced, an out of court settlement may s t i l l be agreed upon. At the end of the court proceedings, the court rules e i t h e r i n favour of the patient (the p l a i n t i f f ) or the doctor (the defendant). In the former case, the court awards damages (including court c o s t s ) , and i n the l a t t e r case, the case i s dismissed and with the court costs of the defendant generally being charged to the p l a i n t i f f . 2. Review of Bar r i e r s The above discussion has suggested that the following b a r r i e r s to medical malpractice l i t i g a t i o n e x i s t : . i . patient s a t i s f a c t i o n ; i i . temporal cost; i i i . lack of knowledge and confidence with the l e g a l system; i v . s a t i s f a c t i o n by alternate mechanism; 70 v. f i n a n c i a l cost; v i . lack of l e g a l j u s t i f i c a t i o n ; v i i . settlement achieved. ( i ) Patient S a t i s f a c t i o n Although on the surface, patient s a t i s f a c t i o n appears to be an ac-ceptable outcome to a doctor/patient encounter, t h i s may not be altogether true. In the i d e a l outcome, not only should the patient be s a t i s f i e d , but he should have been handled with competence and should have received treatment as h i s condition required. C l e a r l y , the s i t u a t i o n may occur where the patient i s s a t i s f i e d but has been handled incompetently and 2 has suffered as a r e s u l t . In general, t h i s may be due to the patient f a i l i n g to r e a l i z e that h i s s u f f e r i n g resulted from incompetent t r e a t -ment. In addition, the doctor-patient r e l a t i o n s h i p may serve to hide t h i s incompetence. As i n d i v i d u a l s become more knowledgeable i n medical science, and as the profession or medicine gradually loses i t s mystique, i t may be expected that more i n d i v i d u a l s w i l l recognize when they have been treated incompetently. ( i i ) Temporal Cost C l e a r l y , the continuation of any action requires a temporal commit-ment. I f such a commitment does not e x i s t , i t could be argued that the case i s not s u f f i c i e n t l y important to the l i t i g a n t to require further action. On the other hand, the acceptance of a temporal cost could prove to be an excessive burden to the l i t i g a n t . In general, t h i s b a r r i e r can only be viewed as an unfortunate but i n e v i t a b l e b a r r i e r to l i t i g a t i o n . 71 ( i i i ) Lack of Knowledge of and Confidence i n the System The average Canadian's understanding of the l e g a l system i s minimal. This ignorance serves to reduce the a l t e r n a t i v e s open to the average i n d i v i d u a l i n the r e s o l u t i o n of disputes. In addition, the l e g a l system often appears intimidating to the layman, and t h i s may deter him from seeking l e g a l recourse. I f the l e g a l system i s removed from the ordinary Canadian, quasi l e g a l a l t e r n a t i v e s may seem equally remote. For example, many i n d i v i d u a l s are probably unaware that recourse concerning a doctor's actions may be obtained through the p r o v i n c i a l l i c e n s i n g a u t h o r i t i e s . It has been suggested that students should be taught an understanding of the l e g a l system while attending high school. This would c e r t a i n l y a s s i s t i n reducing the current remoteness of t h i s important s o c i a l i n -s t i t u t i o n . (iv) S a t i s f a c t i o n Through Alternate Mechanisms In Chapter I I , a number of mechanisms of physician a c c o u n t a b i l i t y were presented and discussed under the t i t l e of "medical accou n t a b i l i t y system". These mechanisms provide the d i s s a t i s f i e d patient with a l t e r -natives to l i t i g a t i o n i n the r e s o l u t i o n of his d i s s a t i s f a c t i o n . (v) F i n a n c i a l Cost In Canada, the cost of l i t i g a t i o n may be d e b i l i t a t i n g . In the f i r s t instance, the c l i e n t must h i r e and cover the expenses of a lawyer. If the i n d i v i d u a l i s unsuccessful i n the lawsuit, i t i s l i k e l y that the "costs of court" of h i s opponent willnbe l e v i e d against him. The p o t e n t i a l cost therefore, i s considerable. In the case of medical malpractice l i t i g a t i o n , the r i s k of loss of 72 s u i t , and consequently, the f i n a n c i a l r i s k i s probably greater than f o r most other areas of l i t i g a t i o n . The fac t that most doctors i n Canada provide malpractice protection through the Canadian Medical Protective Association (C.M.P.A.), i s responsible for th i s increased r i s k . As noted e a r l i e r , the CM.P.A. i s an organization formed by doctors to provide protection to i n d i v i d u a l doctors and to the profession as a whole against "unwarranted, unjust, and excessive claims of medical mal-4 p r a c t i c e " . The CM.P.A. i s not an insurance company; i t i s a protective association. As a consequence, i f i t f e e l s a claim i s unjust, excessive, harrassing or f r i v o l o u s , i t w i l l f i g h t that claim, regardless of cost, as far as the Supreme Court. This philosophy, coupled with the p o l i c y of the courts to assign the "costs of court" to the lo s i n g party, gives the CM.P.A. a great deal of leverage when bargaining with the patient or l i t i g a n t . The l e g a l a i d system which i s administered by each province, provides f i n a n c i a l support for i n d i v i d u a l s with a very low income. In general, l e g a l a i d i n Canada i s viewed as inadequate,^ Not only does i t benefit a very small group, i t s actual benefits are generally substandard and do not a t t r a c t the most experienced lawyers. I t i s probably the middle classes who have most d i f f i c u l t y i n f i n a n c i a l l y supporting a medical malpractice claim. Without strong f i n a n c i a l support, the r i s k of los i n g the case may appear fr i g h t e n i n g . On the other hand, they are i n e l i g i b l e for l e g a l a i d . In the U.S., the contingency fee system has provided some r e l i e f although i t has notable drawbacks. Under a contingency fee system the c l i e n t agrees to pay his lawyer a percentage of any award gained. In return, the c l i e n t pays the 73 lawyer no fees even i f the case i s l o s t . In Canada, seven of the ten provinces permit contingency fees. In a l l cases, the percentage of fees allowed i s l i m i t e d to a c e r t a i n percentage of the award. I t has been suggested that professional ethics have discouraged the use of contingency fees i n Canada. There i s , however, the more c y n i c a l viewpoint that t h e i r lack of use i s based on t h e i r u n p r o f i t a b i l i t y . ^ (vi) Lack of Legal J u s t i f i c a t i o n Chapter IV reviewed the c r i t e r i a and standards by which the court judges medical malpractice. In cases of alleged negligence, the p l a i n t i f f must e s t a b l i s h that a duty of care existed, that there was a breach of this duty, and that t h i s breach of duty resulted i n material i n j u r y to the p l a i n t i f f . I f the p l a i n t i f f i s unable to prove the above, i t i s l i k e l y that he w i l l be unsuccessful. In turn, i n cases of "trespass to person", the p l a i n t i f f must be able to show that there was no consent or that the consent obtained was i n v a l i d . The emphasis i n both cases i s that the p l a i n t i f f must be able to prove that negligence or trespass occurred. Clearly, he may have a legitimate case, but i f he i s unable to prove his case to the s a t i s f a c t i o n of the court, then he w i l l probably be unsuccessful. As was mentioned i n Chapter VI, proving a case of medical malpractice may be exceedingly d i f f i c u l t . With respect to negligence, establishment of a breach of duty and establishment of causation may be p a r t i c u l a r l y troublesome due to the complex nature of medical treatment and the d i f -f i c u l t y i n obtaining a sympathetic expert medical witness. In addition, unlike other areas of negligence, medical malpractice s u i t s are r a r e l y afforded r e l i e f i n the burden of proof through the invocation of the doctrine 74 of "res ipsa l o q u i t u r " . Another notable disadvantage to the l i t i g a n t i s the usual disallowance of t r i a l by jury i n medical malpractice s u i t s . This e f f e c t i v e l y removes the usually more sympathetic judgement of "12 men strong and true". F i n a l l y , the statute of l i m i t a t i o n s which i n many provinces l i m i t s the commencement of medical malpractice s u i t to within 1 or 2 years of the date when the professional services terminated, has disallowed a number of apparently legitimate claims. There are, therefore, a number of d i f f i c u l t i e s facing a p o t e n t i a l l i t i g a n t i n developing a l e g a l l y j u s t i f i e d claim. ( v i i ) Settlement Achieved The achievement of a settlement before or during court action i s the legitimate r e s u l t of bargaining between the l i t i g a n t and the defendant. Such a r e s u l t may, on the surface, appear to be i d e a l . However, the settlement w i l l probably r e f l e c t the d i f f e r i n g power of the two bargaining p a r t i e s . E a r l i e r i n the chapter, i t was noted that the po l i c y of the CM.P.A. to pursue claims i t considers unjust, harrassing or excessive, coupled with the p o t e n t i a l l y high cost of pursuing (and p a r t i c u l a r l y losing) a malpractice claim, places the CM.P.A. i n a strong bargaining po s i t i o n . I t i s consequently l i k e l y that the CM.P.A. has been able to obtain favourable settlements. Conclusions Concerning the Process of Medical  Malpractice L i t i g a t i o n The above analysis suggests that there are a number of s i g n i f i c a n t b a rriers to medical malpractice l i t i g a t i o n . Barriers such as "patient 75 s a t i s f a c t i o n " and " s a t i s f a c t i o n by alternate mechanisms" would probably be viewed as s o c i a l l y acceptable. "Settlement achieved" may also be viewed as acceptable although the power of the CM.P.A. may produce a settlement which does not do j u s t i c e to the claims of the l i t i g a n t . I t might be assumed that "lack of l e g a l j u s t i f i c a t i o n " would be an acceptable b a r r i e r . Nevertheless, the system i n Canada appears to favour the doctor as evidenced by the generally short period of l i m i t a t i o n , the general disallowance of t r i a l by jury, and the doctrine of "res ipsa l o q u i t u r " i n malpractice cases, and the d i f f i c u l t y the p l a i n t i f f has obtaining sympathetic expert witnesses. I n d i v i d u a l l y , each of these factors may be seen as giving the court a minor tendency to favour the doctor. In combination, however, t h e i r e f f e c t may be add i t i v e , thereby producing a strong o r i e n t a t i o n i n favour of the doctor. As a U.S. study of medical malpractice l i t i g a t i o n i n Canada suggests, the Canadian system "psychologically favours the doctor".^ The b a r r i e r s of " f i n a n c i a l cost" and "lack of knowledge and confidence with the l e g a l system" would probably be viewed as unacceptable. As mentioned previously, the actual costs of l i t i g a t i o n and the p o t e n t i a l costs of los i n g the case are considerable. These costs are m u l t i p l i e d by the p o l i c y of the CM.P.A. to pursue to the highest possible l e v e l , a l l claims i t considers unjust. There can be no doubt that actual and po t e n t i a l f i n a n c i a l costs provide a strong incentive against suing the doctor. "Lack of knowledge and confidence i n the l e g a l system" i s an unfortu-nate byproduct of Canadians' lack of contact with the l e g a l system. In the U.S.A, where every c h i l d ' s education includes a close review of the 76 c o n s t i t u t i o n , c i t i z e n s are generally aware of th e i r considerable r i g h t s , and the f a c t that these r i g h t s may be protected through court a c t i o n . Although Canada has a B i l l of Rights, i t has proven to be a rather i n -g e f f e c t u a l document, and therefore, does not provide the same focus on the l e g a l system as the c o n s t i t u t i o n i n the United States. " S a t i s f a c t i o n by a l t e r n a t i v e mechanism" provides an acceptable and useful b a r r i e r to l i t i g a t i o n . Often patients only wish to ensure that 9 what has happened to them, w i l l not occur i n the future. Alternate mechanisms may often achieve t h i s or a s i m i l a r goal (see Chapter I I ) . Ove r a l l , the process of medical malpractice l i t i g a t i o n i n Canada appears to be overly r e s t r i c t i v e to the patient or p l a i n t i f f . As a consequence, l i t i g a t i o n - d o e s not provide an accessible mechanism for obtaining compensation f o r losses and i n j u r i e s r e s u l t i n g from medical treatment. The Extent and Cost of Medical Malpractice L i t i g a t i o n i n Canada Most doctors i n Canada provide protection for themselves against medical malpractice l i t i g a t i o n through membership im the Canadian Medical Protective Association (CM.P.A.). The percentage of physicians i n Canada covered by the C.M.P.A. has gradually increased from 69% i n 1961, to 89% • 1 0 7 0 1 0 i n 1972. 1. The Extent of Medical Malpractice L i t i g a t i o n i n Canada Table III presents a graphical o u t l i n e of the annual volume of new claims made against members of the C.M.P.A. since 1960. P r i o r to 1960, 77 Table III - New Claims Made Against Members of the Canadian Medical Protective Association, 1961-1975. New 240 Claims 220 m 200 _ 180 160 140 120 100 J 80 60 40 20 25 34 be 49 49 56* 64 65 62 80 131 152 168 220 229 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 Year * estimate. 78 the amount of l i t i g a t i o n was r e l a t i v e l y i n s i g n i f i c a n t , and i n most years l e s s than 10 new claims were made. In the decade of the s i x t i e s , there was a gradual increase i n new claims so that by the end of the decade, 60 or more new claims were being made annually. The early seventies saw t h i s rate of increase accelerate and i n 1974, over two hundred new claims were made. From 1961 to 1975, there was an o v e r a l l 816% increase i n new claims. 668% or 4/5ths of that increase occurred from 1970 to 1975. I t would be expected that the amount of l i t i g a t i o n each year would roughly r e f l e c t the number of services or doctor-patient encounters during that year. Unfortunately, t h i s data i s not a v a i l a b l e . Data on the number of doctors covered by the C.M.P.A., however, i s a v a i l a b l e and Table IV' presents a histogram of new claims per 1,000 doctors at r i s k for the years 1961-1975. The histogram suggests that the number of doctors at r i s k may explain a portion of the increase i n claims p a r t i c u l a r l y f o r the 1961-1970 period. During t h i s period, the number of claims per year i n -creased by 220% whereas the increase i n new claims per 1,000 doctors was only 89%. Table V outlines the percentage increase i n new claims each year which i s unexplained by the increase i n doctors at r i s k (Column C). Column A shows the percentage increase i n new claims over the previous year. Column B, the percentage i n new claims each year explained by the increased number of doctors at r i s k , i s subtracted from Column A to give Column C. The mean unexplained increase each year i s 7%. A f t e r examining Table IV , i t might be suspected that the la r g e s t part of t h i s increase has occurred i n the years 1971-75. The hypothesis that "the percentage annual increase i n new claims has been s i g n i f i c a n t l y higher i n the 1970-75 i 79 Table IV - New Claims per 1000 Doctors at Risk, 1961-1975. New Claims per 1000 Doctors 4 A l A co oo in CM CO o CN CO o-o m CO m in CM ON CM CO o CO m CO o O N r—I CO m m CM 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 Year 80 Table v - The Percentage Increase i n New Claims Each Year that i s Unexplained by the Increase i n the Number of Doctors at Risk, 1961-1975 YEAR * A ** B i ** C : 1961 56 .3% 47 .7% 8 .6% 1962 36 .0 29 .4 6 .6 1963 5 .9 2 .9 3 .0 1964 36 .1 29 .4 6 .7 1965 0 -7 .6 7, .6 1966 14 .3 5 .5 8 .8 1967 14 .3 8 .1 6 .2 1968 1 .6 -7 .1 8, .7 1969 -4 .6 -10 .5 5, .9 1970 29, .0 25 .0 4. .0 1971 63, .8 51 .8 12. ,0 1972 16, .0 10, .2 5. ,8 1973 10. .5 3. .7 6. ,8 1974 31. ,0 19, .7 11. ,3 1975 4. ,0 0. .9 3. ,1 Mean 20. 9% 13. .9% 7. 0% = A-B * A: percentage increase i n new claims over previous year ** B: percentage increase i n new claims/1,000 doctors over previous year *** C=A-B: percentage increase i n new claims per year that i s unexplained by the number of doctors at r i s k 81 period than i n the 1961-1970 period", was consequently tested. At a 90% l e v e l of s i g n i f i c a n c e (t £ + 1.771) a t . t e s t (t = 1.29) indicated that there was no s i g n i f i c a n t d ifference between these time periods. This allows the suggestion that i f trends i n new claims continue as they have i n the past, then an average of 7% increase i n claims would be expected i f the number of doctors at r i s k remains s t a t i c . Table VI outlines the expected volume of new claims as w e l l as the number of claims per 1,000 doctors up u n t i l 1990. In 1990, one i n every 47 doctors would have a claim made against him. This compares to one i n every 131 doctors i n 1975. I f the future follows the trends of the l a s t 15 years, i t may be expected that there w i l l be a notable increase i n the volume of new claims. Table V I - Projected Annual Number of New Claims and New Claims per 1,000 Doctors, 1975-1990 YEAR PROJECTED NEW CLAIMS PROJECTED m PER 1,000 1975 229 7.63 1976 245 8.16 1977 262 8.73 1978 280 9.33 1979 300 9.93 1980 321 10.69 1981 344 11.46 1982 368 12.26 1983 394 13.12 1984 426 14.19 1985 456 15.19 1986 488 16.25 1987 522 17.39 1988 559 18.62 1989 598 19.92 1990 640 21.32 82 2. The Costs of Medical Malpractice L i t i g a t i o n i n Canada Table VII presents the t o t a l costs of the C.M.P.A. during the years 1961-1975. Table VII - Tot a l Costs of the Canadian Medical Protective Association, 1961-1975 YEAR TOTAL COSTS 1961 $ 122,325 1962 166,165 1963 133,744 1964 112,137 1965 161,920 1966 328,806 1967 309,954 1968 427,356 1969 403,861 1970 812,261 1971 687,255 1972 747,204 1973 993,176 1974 1,077,434 1975 $1,952,466 (Source: Annual General Reports, 1961-1975, Canadian Medical Protective Association, Ottawa) There has c l e a r l y been an increase i n the t o t a l costs of the C.M.P.A. over t h i s period as the costs of 1975 were 1,500% greater than the costs os 1961. On average, the annual increase i n costs over the previous year has been 28%. The period of the l a t e 1960's and early 1970's proved to be one of high i n f l a t i o n and consequently, i n f l a t i o n may be p a r t i a l l y responsible for these increased costs. TableviTl- presents t o t a l costs converted to 1961 d o l l a r s using the Consumer Price Index. 83 Table VIII - Total Costs of the CM.P.A. i n 1961 Do l l a r s , 1961-1975 YEAR TOTAL COSTS (1961 $) 1961 122,325 1962 164,195 1963 129,849 1964 107,001 1965 150,764 1966 295,158 1967 268,590 1968 355,829 1969 321,802 1970 626,261 1971 515,184 1972 544,481 1973 660,356 1974 645,944 1975 1,056,529 Using these revised figures, t o t a l costs s t i l l increased a substantial 764% over the 15-year period. I t would be expected that costs would increase with the number of claims handled by the CM.P.A. Exact numbers of claims handled annually by the CM.P.A. are not av a i l a b l e ; however, an approximation of these numbers i s possible by combining the number of new l e g a l actions or claims with the number of claims dismissed, discontinued, s e t t l e d or l o s t . Table IX outlines the average yearly cost per claim i n process ( i n 1961 d o l l a r s ) . Over the 15-year period, the average annual cost per claim i n process has been $2,643 (1961 d o l l a r s ) . This f i g u r e has remained r e l a t i v e l y stable as indicated by the median or $2,643 and range of 84 Table IX - Average Cost, i n 1961 Dollars per Claim i n Process, 1961-1975 YEAR TOTAL COSTS (1961 $) CLAIMS IN PROCESS COST/CLAIM IN PROCESS 1961 $ 122,325 45 $2,718 1962 164,195 53 3,098 1963 129,849 58 2,239 1964 107,001 72 1,486 1965 150,764 81 1,861 1966 295,158 101 2,922 1967 268,590 111 2,420 1968 355,829 112 3,177 1969 321,802 102 3,155 1970 626,261 144 4,349 1971 515,184 208 2,477 1972 544,481 215 2,532 1973 660,356 246 2,684 1974 645,944 347 1,862 1975 1,056,529 396 2,668 MEAN $2,643 $1,486 - $4,349. I t therefore appears that the increase i n costs may be explained by both the increase i n claims and the i n f l a t i o n rate. The CM.P.A. c l a s s i f i e s i t s expenses into three categories: awards or settlements, l e g a l costs and administrative costs. Table X outlines t h i s breakdown f or the years 1961—1975. 85 Table X - Breakdown of Total Costs of the Canadian Medical Protective Association, 1961-1975 Settlement Year and Award Costs % T o t a l Legal Costs % T o t a l Admin. Costs % Total Total Costs % T o t a l 1961 70,222 42. .3 39,174 23.6 56,769 34. 1 166,165 100.0 1962 30,609 22. 9 35,945 26.9 67,190 50. 2 133,744 100.0 1963 16,478 14. 7. 21,716 19.4 73,943 65. 9 112,137 100.0 1964 25,607 15. .8 49,666 30.7 86,647 53. 5 161,920 100.0 1965 168,119 51'. 1 67,553 20.6 93,134 28. 3 328,806 100.0 1966 132,137 42. 6 72,158 23.3 105,659 35. 1 ' 309,954 100.0 1967 154,812 36. 2 151,384 35.4 121,340 28. 4 427,356 100.0 1968 122,819 3.0. 4 139,055 34.4 141,987 35. 2 403,861 100.0 1969 439,247 54. 1 221,771 27.3 151,243 18. 6 812,261 100.0 1970 : 223,951 32. 6 238,818. 34.8 224,486 32. 6 687,255 100.0 1971 : 276,292 37. 0 251,924 33.7 218,988 29. 3 747,204 100.0 1972 253,371 25. 5 427,250 43.0 312,555 31. 5 993,176 100.0 1973 325,087 30. 2 441,662 41.0 310,685 28. 8 1,077,434 100.0 1974 896,858 45. 9 664,116 34.0 391,492 20. 1 1,952,466 100.0 1975 951,609 43. 1 766,916 34.8 487,282 22. 1 2,205,807 100.0 Source: Annual Reports, 1961-1975, Canadian Medical Protective Association, Ottawa On average, 35% of the t o t a l expenses of the C.M.P.A. are f o r settlements or awards. The remaining 65% of costs are i n the areas of l e g a l costs (31%) and administrative costs (34%). Settlement and award costs are therefore only a small portion of the costs of the C.M.P.A. I t appears that the p o l i c y of the C.M.P.A. to f i g h t any claim i t considers unjust, 86 harrassing and excessive, may contribute to the high percentage of overhead costs of the CM.P.A. 3. Conclusions Concerning the Extent and Cost of Medical Malpractice  L i t i g a t i o n The above analysis suggests that there has been a r e a l increase of approximately 7% per year i n the amount of l i t i g a t i o n against doctors i n Canada. This increase i n claims has also been responsible f o r i n -creasing the costs of the CM.P.A. i n handling claims. A second factor a f f e c t i n g costs has been i n f l a t i o n . If the number of claims continues to increase at the current rate, by 1990, over 20 new claims per thousand doctors w i l l be registered. This compares to a current rate of almost 8 claims per thousand doctors. With the high overhead costs of the CM.P.A., th i s increase i n claims w i l l r e s u l t i n considerable increases i n costs regardless of whether the claim i s won or l o s t by the CM.P.A. 87 FOOTNOTES - CHAPTER V 1. P a t i e n t s a t i s f a c t i o n may be u n f o u n d e d , b e i n g b a s e d on m i s c o n c e p t i o n and i n c o m p l e t e i n f o r m a t i o n . The r e v e r s e s i t u a t i o n i n w h i c h a p a t i e n t has been t r e a t e d c o m p e t e n t l y , but n e v e r t h e l e s s i s d i s s a t i s f i e d , a l s o e x i s t s . The a u t h o r p r e s e n t s h i m s e l f as a t y p i c a l example of a C a n a d i a n who, b e f o r e t h i s s t u d y , had v i r t u a l l y no u n d e r s t a n d i n g o f the l e g a l s y stem. C a n a d i a n M e d i c a l P r o t e c t i v e A s s o c i a t i o n , C o n s t i t u t i o n and Bylaws, (Ottawa, 1973), p. 6. O n t a r i o , M i n i s t r y of the A t t o r n e y - G e n e r a l " , T a s k F o r c e on  L e g a l A i d , ( T o r o n t o : Q u e e n s P r i n t e r , 1 9 7 4 ) . S u g g e s t e d by Dr. B e r n a r d D i c k e n s , V i s i t i n g P r o f e s s o r , F a c u l t y of Law, U n i v e r s i t y of T o r o n t o i n a s e m i n a r to the Department o f H e a l t h A d m i n i s t r a t i o n , F a c u l t y of M e d i c i n e , U n i v e r s i t y o f T o r o n t o , November, 1976. R. Welch, " M e d i c a l M a l p r a c t i c e i n Canada," A p p e n d i x to t h e S e c r e t a r y ' s Commission on M e d i c a l M a l p r a c t i c e , D epartment of H e a l t h , E d u c a t i o n and W e l f a r e , W a s h i n g t o n , (DHEW# (OS) 73-89), 1973. R u s s e l l n o t e s when s p e a k i n g of t h e Supreme C o u r t of Canada t h a t "The C a n a d i a n B i l l o f R i g h t s imposed a mammoth l e g i s l a t i v e t a s k on any c o u r t w h i c h would t a k e i t s e r i o u s l y . . . i t i s no s u r p r i s e t h a t t h e Supreme C o u r t o f Canada r e s p o n d e d r e l u c t a n t l y and u n e v e n l y to t h i s c h a l l e n g e . . .Most o f the j u d g e s , to put i t m i l d l y , do not seem a n x i o u s to assume the s t r o n g p o l i t i c a l r o l e e n t a i l e d i n e n f o r c i n g t h e s t a n d a r d s of a c o m p r e h e n s i v e B i l l o f R i g h t s on t h e p o p u l a r B r a n c h of Government. P.v.Hr ? . R u s s e l l , "The P o l i t i c a l R o l e o f t h e Supreme C o u r t o f Canada i n . I t ' s F i r s t C e n t u r y , " C a n a d i a n Bar Review 53:576-593, 1975, p. 592. P e r s o n a l c o m m u n i c a t i o n w i t h Dr.R. Wales, A s s i s t a n t Deputy R e g i s t r a r , C o l l e g e of P h y s i c i a n s and Surgeons o f O n t a r i o . 10. O b t a i n e d u s i n g f i g u r e s on the t o t a l number Canada, s u p p l i e d by S t a t i s t i c s Canada. of P h y s i c i a n s i n 88 CHAPTER VI ALTERNATIVES TO MEDICAL MALPRACTICE LITIGATION I l l i c h has commented on what he views as the growing incidence of iatrogenic or medically-caused disease.^ I t has been suggested that as medical care has become more sophisticated and medical treatment more powerful, the r i s k of harmful side e f f e c t s from t h i s care and treatment 2 have also increased. For example, i t has been well established that; the r i s k of side e f f e c t s from drugs increases exponentially with the 3 number of concurrently administered drugs. Another notable example i s the use of cardiac catheterization, an extremely r i s k y procedure, i n the diagnosis (not treatment) of cardiovascular and heart diseases. Whether or not the incidence of iatrogenosis i s increasing i s a mute point and has not, as yet, been established. I t has nevertheless been documented that one i n every f i f t y c h i l d r e n admitted to a h o s p i t a l 4 suffers an accident which requires s p e c i f i c treatment, and i t has been estimated that this r a t i o may be as high as one i n every f i v e patients i n adult research h o s p i t a l s . F i n a l l y , the United States Department of Health Education and Welfare has calculated that 7% of a l l patients suffer compensatable i n j u r i e s while h o s p i t a l i z e d . I t i s d i f f i c u l t , i f not impossible, to compare the personal cost of these accidents with the cost of non treatment. Conceivably and hopefully, the r i s k s and costs of iatrogenic disease are l e s s than those of non treatment. Nevertheless, i t i s c l e a r that both the personal and 89 s o c i a l costs of medical accidents, whether caused by negligence or mis-adventure, are considerable and that the needs for a mechanism of compensation are great. Medical malpractice l i t i g a t i o n provides the only mechanism by which patients may obtain compensation for medically caused losses and i n j u r i e s . ^ I t i s a mechanism of s e l e c t i v e compensation since only those cases where negligence or trespass to person can be shown, are compensated. F i n a l l y , access to medical malpractice l i t i g a t i o n may be l i m i t e d . As a r e s u l t , medical malpractice l i t i g a t i o n may be seen as a r e l a t i v e l y i n e f f e c t i v e mechanism of compensation. I t w i l l be useful at t h i s point to review a concept developed by 8 Calabresi concerning accident cost reduction. This concept also happens to provide a useful framework f o r developing a l t e r n a t i v e s to medical malpractice l i t i g a t i o n . Accident Cost Reduction Calabresi contends that the function of a l l accident law (including t o r t law) i s to reduce "the sum of the costs of accidents and the costs 9 of avoiding accidents". He suggests three subgoals to the above function. (1) the goal of reducing the number and severity of accidents (primary accident costs); (2) the goal of reducing the costs r e s u l t i n g from accidents (secondary accident costs), and (3) the goal of reducing the costs of administering the handling or prevention of accidents ( t e r t i a r y accident costs). Calabresi notes that the above goals are not mutually exclusive but work i n combination. For example, primary costs cannot be reduced beyond a c e r t a i n point without incurring greater t e r t i a r y costs. The 90 function of accident law, he suggests, should be to balance these goals and thereby produce the lowest possible costs to society. I t w i l l be useful at t h i s point, to i n d i v i d u a l l y review each of these subgoals, o u t l i n e mechanisms by which they may be achieved, and r e l a t e these goals to medically caused accidents. Due to the r e l a t i o n -ship between each of the goals, examining them i n d i v i d u a l l y may be somewhat a r t i f i c i a l , but i t w i l l produce a u s e f u l r e s u l t . (1) Reducing Primary Accident Costs The only means of reducing the primary costs of accidents i s to reduce the number and severity of accidents. At f i r s t glance, we might suppose that the complete elimination of accidents would be the i d e a l s i t u a t i o n . Such a goal, however, would be s i m p l i s t i c since every a c t i v i t y c a r r i e s with i t the r i s k of accidents. Consequently, the only c e r t a i n way of eliminating a l l accidents would be to eliminate a l l a c t i v i t i e s . This i s hardly a workable proposition. Accidents are a r i s k of l i v i n g . How then, can society reduce the number and severity of accidents whilst maintaining an acceptable l e v e l of a c t i v i t y ? Calabresi suggests two possible approaches: the general or market deterrence approach'''''' and the s p e c i f i c or c o l l e c t i v e deterrence approach."^ (a) General or Market Deterrence This approach i s based on the proposition that i n d i v i d u a l s know what i s best f o r themselves and consequently, should be given the freedom to choose whether or not to engage i n an a c t i v i t y given the d i r e c t and p o t e n t i a l costs involved. General deterrence consequently, implies that accident costs should be included as one of the many costs of undertaking an a c t i v i t y . Each i n d i v i d u a l would then be forced to consider accident 91 costs i n choosing among a c t i v i t i e s , and the sum of these choices would produce the best possible combination of a c t i v i t i e s . General deterrence i s e s s e n t i a l l y based on the economic theory of resource a l l o c a t i o n . Although t h i s theory, i n i t s pure form, i s somewhat questionable, i t may provide a useful tool i f modified. Calabresi suggests modifying the basic tenet that " i n d i v i d u a l s sometimes know what i s best for themselves". The implication i s that i n c e r t a i n but not a l l a c t i v i t i e s , general deterrence may be a useful t o o l i n reducing primary accident costs, (b) S p e c i f i c or C o l l e c t i v e Deterrence In i t s purest form, " s p e c i f i c deterrence suggests that a l l decisions as to accident costs should be made c o l l e c t i v e l y through the p o l i t i c a l process. A l l the benefits and a l l the costs, including accident costs, of every a c t i v i t y , would be evaluated together and a c o l l e c t i v e decision would be made regarding how much of each a c t i v i t y should be allowed^and the way i n which each should be performed". I t i s the s i t u a t i o n of the state imposing c o l l e c t i v e decisions which i n some instances, may p r o h i b i t c e r t a i n a c t i v i t i e s (e.g. murder) and i n other s i t u a t i o n s , l i m i t the manner i n which an a c t i v i t y may be performed (e.g. d r i v i n g an automobile). Calabresi l a b e l s the above s i t u a t i o n s as " p r o h i b i t i o n " and " r e s t r i c t i o n " respectively."*"^ Another scheme of s p e c i f i c deterrence i s the l i m i t a t i o n of an a c t i v i t y . "A simple l i m i t a t i o n implies a decision that we want no more than a given amount of an a c t i v i t y but that c o l l e c t i v e l y we are i n d i f f e r e n t as to who engages i n i t or how i t i s performed".^ Calabresi suggests that the determination of who w i l l p a r t i c i p a t e i n the r e s t r i c t e d a c t i v i t y may be made by l o t or according to a willingness to bear monetary or non monetary burdens imposed on the a c t i v i t y . 92 (c) Mixed Systems In most instances, primary accident cost reduction w i l l incorporate both the s p e c i f i c and the general deterrence approaches. For example, driving an automobile i s l i m i t e d to i ndividuals over the age of 16 and is r e s t r i c t e d according to a set of regulations known as the T r a f f i c Code. In turn, motorists are expected to provide insurance to cover the cost of accidents. Presumably, the cost of insurance or the accident cost of d r i v i n g i s one of the costs considered by the motorist i n his decision to engage i n t h i s a c t i v i t y . Tort law i s also a mixed system of accident deterrence. The decision of the court to impose l i a b i l i t y on c e r t a i n a c t i v i t i e s i s e s s e n t i a l l y a c o l l e c t i v e decision and therefore, s p e c i f i c deterrence. The manner i n which the deterrent i s administered, however, i s through the market mechanism of general deterrence. For the i n d i v i d u a l or enterprise d i r e c t l y involved i n the judgement, the deterrent against continuing the behaviour is the "out of pocket" expense of the judgement. Conceivably, other individuals and enterprises which are also involved i n the same area of a c t i v i t y as the defendant, w i l l take into account the actual and p o t e n t i a l costs of the new l i a b i l i t y and decide, given the costs, whether the a c t i v i t y should be continued, altered or ceased. The d i f f i c u l t y with t o r t law as a deterrent, i s that the deterrent i s administered only a f t e r an accident has occurred and that other i n d i v i d u a l s and enterprises facing the new l i a b i l i t y may not be aware of t h e i r new l i a b i l i t y or may not i n t e r n a l i z e the fact that this new l i a b i l i t y presents them with increased costs. (2) Reducing Secondary Accident Costs Secondary accident costs are those costs which r e s u l t from an accident (e.g. health care cost, r e h a b i l i t a t i o n costs, loss of income, e t c . ) . In 93 this s i t u a t i o n , the accident has occurred and the aim i s to f i n d the mechanism which minimizes both the costs and the impact of the costs. It has been suggested that the o v e r a l l impact of accident costs would be le s s burdensome i f : (a) they are spread broadly amongst a large group of people ( i . e . the burden i s less i f a $1,000 loss i s spread equally amongst 1,000 people than i f the f u l l amount i s ca r r i e d by one person) or (b) they are placed on that category of people least l i k e l y to suffer s o c i a l or economic d i s l o c a t i o n s as a r e s u l t of the cost. Although economists may argue over the v a l i d i t y of the above propositions in s p e c i f i c cases, they appear to be reasonable i n the general s i t u a t i o n . They both incorporate the spreading of costs although i n the l a t t e r case, the cost spreading i s p a r t i a l and s e l e c t i v e . As a r e s u l t , i t i s known as the "deep pocket" approach. If the avoidance of secondary accident costs were the only goal, then the t o t a l spreading of a l l accident costs would be i d e a l . In other words, a l l i n d i v i d u a l s would be expected to contribute to a pool from which reimbursements for a l l accident costs would be a l l o c a t e d . The contributions to the pool could follow a mechanism of progressive taxation or even a deep pocket approach where the wealthy would be forced to contribute a greater portion of t h e i r income than the poor. I t i s ap-parent, however, that such a scheme would do nothing to promote the goal of primary accident cost reduction since no f i n a n c i a l penalty i s d i r e c t l y f e l t as a r e s u l t of the accident. In another scheme, i n d i v i d u a l s could be divided into r i s k categories and each r i s k category would be expected to cover accident costs of the individuals i n that c a t e g o r y . ^ Such a scheme would provide some incentive 94 for primary cost reduction but would reduce the degree of cost spreading. It i s therefore apparent that the goal of secondary cost reduction through cost spreading and that of primary cost reduction through general deterrence, are i n opposition. Consequently, there i s a trade-off between the degree of cost spreading of secondary accident costs and the degree of general deterrence of primary accident costs. Calabresi notes that intertemporal spreading ( i . e . the spreading of costs over time) may be as important as interpersonal spreading."^ Situations may exist where the i n d i v i d u a l sustaining the loss would be able to handle i t i f the losses occurred over a protracted period of time rather than at one point i n time. The consumer of insurance often views the purchase of insurance i n t h i s way and such a s i t u a t i o n may be c l o s e l y reached i n areas where the pooling of r i s k and consequently, the spreading of cost i s very narrow (over a small group of i n d i v i d u a l s ) . F i n a l l y , i t should be noted that the process by which the compensation scheme may be administered may lead to increasing secondary costs. As Calabresi notes: "One of the major charges being l e v e l l e d against the f a u l t system today i s that i t combines de-lay with uncertainty of compensation....This hampers rehabilitation^and increases secondary losses s u b s t a n t i a l l y " . (3) Reducing T e r t i a r y Accident Costs Any system attempting to minimize primary and secondary accident costs must incur t e r t i a r y or administrative costs. Under c e r t a i n schemes, the savings to be made i n primary and secondary costs w i l l be outweighed by the increase i n t e r t i a r y costs. I f the aim i s to reduce t o t a l accident costs, such schemes should be rejected. 95 Medical Accident Cost Reduction Before developing a l t e r n a t i v e s to medical malpractice l i t i g a t i o n , i t w i l l be useful to examine with reference to Calabresi's scheme, the current mechanism of handling the costs of medical accidents i n Canada. 1. Medical Malpractice L i t i g a t i o n as a Mechanism of Accident Cost  Reduction With respect to primary cost reduction, medical malpractice l i t i g a t i o n may be seen as r e l a t i v e l y i n e f f e c t i v e . The system requires that doctors translate the outcome of l i t i g a t i o n against t h e i r peers, into s p e c i f i c changes i n t h e i r p r a c t i c e . Although notable changes i n judgement are well communicated i n the professional l i t e r a t u r e and advice on medical jurisprudence i s r e a d i l y a vailable, most doctors are not aware of this l i a b i l i t y . A second problem l i e s with the l i m i t e d scope of the court's judgement of l i a b i l i t y . Many medical accidents occur which would not be c l a s s i f i e d as due to negligence and trespass. Consequently, no deterrent exists for the behaviour causing these accidents. For those l i m i t e d s i t u a t i o n s which are e l i g i b l e , medical malpractice l i t i g a t i o n provides a system f o r covering secondary costs. I t should be noted, however, that medical malpractice l i t i g a t i o n "combines delay with uncertainty of compensation" and consequently, increases secondary costs due to delays i n r e h a b i l i t a t i o n . In the case of medical malpractice l i t i g a t i o n i n Canada, the costs are spread equally among a l l doctors. This narrow pooling of r i s k aids i n primary cost reduction although further pooling by s p e c i a l t y might be more e f f e c t i v e i n achieving this aim. The costs of those accidents which are i n e l i g i b l e for compensation 96 through medical malpractice l i t i g a t i o n must be borne by the i n d i v i d u a l affected. In most instances, h i s actions w i l l have l i t t l e impact i n preventing future accidents of a s i m i l a r nature and consequently, no incentive for primary cost reduction occurs. Individuals may be covered by d i s a b i l i t y insurance at t h e i r place of work i n which case the accident cost would be spread among a l l employees insured. A d d i t i o n a l l y , the Federal Government, through i t s s o c i a l insurance and unemployment insurance 19 schemes, provides a limited amount of compensation. The cost i n t h i s case i s spread among a l l taxpayers. In a l l the above three s i t u a t i o n s there i s no incentive for primary cost reduction, although they do a s s i s t i n covering secondary costs. The t e r t i a r y costs of l i t i g a t i o n are considerable. Each case i s treated i n d i v i d u a l l y , and the adversary process necessitates the h i r i n g of lawyers and expert witness' as well as using the expensive machinery of the courts. The t e r t i a r y costs of d i s a b i l i t y insurance and government financed s o c i a l insurance schemes are d i f f i c u l t to determine. Their costs per case, however, would be considerably less than l i t i g a t i o n . O verall, the above analysis suggests that medical malpractice l i t i g a t i o n provides l i m i t e d primary cost deterrence at a high t e r t i a r y cost. The costs of many accidents, however, are not e l i g i b l e f o r compensation through l i t i -gation. Other compensation schemes provide some reduction i n secondary costs, however, with no incentive f o r primary cost reduction. 2. Alternative Schemes of Medical Accident Cost Reduction - General  Consideration Calabresi's concept of accident cost reduction provides a useful scheme for developing and evaluating a l t e r n a t i v e systems of compensation for medical accidents. 97 (a) Minimizing Primary Medical Accident Costs As was discussed i n Chapter I I I , due to h i s i n a b i l i t y to determine h i s health requirements, the consumer of medical services a l l o c a t e s t h i s r e s p o n s i b i l i t y to the provider (usually the doctor). Most decisions con-cerning health service u t i l i z a t i o n , and consequently, most decisions leading to medical accidents are made by the provider. I t i s the provider who consequently has the greatest opportunity to reduce the amount and severity of medical accidents. (i ) S p e c i f i c or C o l l e c t i v e Deterrence In s i t u a t i o n s of r e l a t i v e l y s t a t i c technology, c o l l e c t i v e l y determined rules provide a s u i t a b l e means of deterring primary accident costs. For example, municipal b u i l d i n g codes prescribe the acceptable format of plumbing, wiring and other aspects of house design, thereby preventing future accidents due to f a u l t y design. The system of c o l l e c t i v e d e c i s i o n -making required to develop and amend such a code i s r e l a t i v e l y cumbersome and slow. Building technology, however, i s r e l a t i v e l y s t a t i c and the losses due to the delay required to approve new technologies are outweighed by the ongoing benefit of accident deterrence. Medical technology, i n contrast, i s a r a p i d l y changing technology which would n o t . e a s i l y conform to a comprehensive code of rules or guidelines. In order to be e f f e c t i v e , such a code would be i n a constant state of r e v i s i o n and would consequently present great d i f f i c u l t i e s administering. In addition, many of the r u l e s would be of questionable v a l i d i t y due to the frequent d i f f i c u l t y i n e s t a b l i s h -ing d e f i n i t i v e cause-effect r e l a t i o n s h i p s i n medical treatment. Tort law, i n e f f e c t , currently provides a code by which physicians' actions should be governed (see Chapter IV). The code i s voluntary and 98 not enforced by c i v i l a u t h o r i t i e s . In turn, l i c e n s i n g bodies also provide a code governing both the e t h i c a l and c l i n i c a l p r a c t i c e of the doctor (see Chapter I I ) . I t i s notable that i n both these cases, the ".codes" tend to speak i n g e n e r a l i t i e s concerning acceptable and unacceptable patterns of c l i n i c a l p r a c t i c e . Tort law speaks of "the reasonable doctor of ordinary prudence" and the professional code speaks of " f a i l u r e to maintain the standards of pr a c t i c e of the profession". Both have proven d i f f i c u l t to apply i n s p e c i f i c areas which no doubt r e f l e c t s the great d i f f i c u l t y i n l e g i s l a t i n g medical care. In general, i t may be said that s p e c i f i c deterrence provides an inappropriate v e h i c l e f o r reducing the primary costs of medical accidents. ( i i ) General or Market Deterrence Since the p o t e n t i a l to reduce the number and severity of accidents l i e s with the provider of medical services (the doctor), any mechanism of market deterrence should be administered on the provider. Towards t h i s end, the cost of medical accidents could be d i r e c t l y l e v i e d on the physician providing the service. Conceivably, physicians would then avoid high r i s k procedures. The side e f f e c t s , however, could be d r a s t i c . I t would be expected that there would be a movement of physicians out of high r i s k s p e c i a l i t i e s . This loss of expertise would not only r e s u l t i n a decrease i n the number of high r i s k procedures performed but may also reduce the a v a i l a b i l i t y of p o t e n t i a l l y b e n e f i c i a l procedures normally performed by these s p e c i a l i s t s . A second e f f e c t would be the di s i n c e n t i v e f o r c l i n i c a l medical research. Although c l i n i c a l research i s often very r i s k y , i t s long term e f f e c t may be the development of low r i s k procedures. The long term aim of developing low r i s k procedures would therefore be jeopardized by the short term aim of reducing accident costs. A f i n a l c r i t i c i s m i s LEAF 99 OMITTED IN PAGE NUMBERING. 100 that high r i s k procedures would probably be avoided to the extent that they would not be performed even when the p o t e n t i a l costs of non treatment were higher than the p o t e n t i a l accident costs of performing the procedure. In order to force the doctor to balance the costs of non treatment against accident costs, the costs of non treatment could also be le v i e d against the doctor. Thus, a plan developed by Calabresi suggests that the patient's costs of loss of employment due to sickness as well as the costs of the 20 patient's death, should also be l e v i e d against the doctor. This would conceivably provide the doctor with a f i n a n c i a l incentative to provide the most appropriate treatment through the minimization of costs of s i c k -ness and costs of death. (b) Minimizing Secondary Medical Accident Costs As was indicated e a r l i e r i n th i s chapter, complete cost spreading provides the ultimate means of reducing secondary medical accident costs. Such cost spreading could be provided through s o c i a l insurance or "no f a u l t " insurance schemes. Under such schemes, each p a r t i c i p a n t i n the medical care process would contribute to a cen t r a l pool from which com-pensation for medically caused i n j u r i e s or losses would be paid. The amount of cont r i b u t i o n could be f i x e d or progressively based on the in d i v i d u a l ' s a b i l i t y to pay. The advantage of such a system i s that compensation i s guaranteed ( i . e . secondary costs reduced) and that administrative or t e r t i a r y costs would be comparatively low. It i s obvious, however, that such a scheme would provide no incentive for primary cost reduction. I f the degree of cost spreading i s reduced by assigning the burden of covering the cost of medical accidents to the providers rather than the r e c i p i e n t s of medical care, then some incentive for primary cost reduction would occur. Such a "deep pocket" scheme 101 would probably be s o c i a l l y acceptable since the medical profession i s one of the most highly paid sectors of society. Moreover, such spreading would protect the i n d i v i d u a l doctor from extreme f l u c t u a t i o n i n income incurred by d i r e c t l y covering medical accident costs. The above system could be even more s p e c i f i c as a deterrent to medical accidents by pooling physicians according to t h e i r s p e c i a l t i e s . High r i s k s p e c i a l t i e s would therefore be subject to greater costs and a stronger deterrent than low r i s k s p e c i a l t i e s . Perhaps the most s p e c i f i c system of deterrence would be to rank procedures according to t h e i r r i s k and charge physicians a premium for each procedure performed based on t h i s r i s k . I t should be noted, that as the assignment of r i s k becomes more s p e c i f i c , the t e r t i a r y or administrative costs increase, (c) Minimizing T e r t i a r y Medical Accident Costs In the sections above, the impact of various schemes on t e r t i a r y costs has been discussed. I t i s apparent that t e r t i a r y costs increase with the complexity of the system. S i m p l i c i t y i s the answer to minimizing t e r t i a r y accident costs. 3. Evaluating A l t e r n a t i v e Schemes of Medical Accident Cost Reduction Table XI presents an o u t l i n e of the various goals or desired a t t r i b u t e s of a system to replace medical malpractice l i t i g a t i o n . Table XI - Goals or A t t r i b u t e s of a System of Medical Accident Compensation 1. Total Cost Minimization (a) Primary Cost Minimization • (b) Secondary Cost Minimization (c) T e r t i a r y Cost Minimization 2. P r a c t i t i o n e r Accountability 3. Accountability of the Profession 102 Total cost minimization, as divided by Calabresi into three sub goals of primary, secondary and t e r t i a r y cost minimization, i s the f i r s t goal. The second and t h i r d goals of p r a c t i t i o n e r a c c o u n t a b i l i t y and a c c o u n t a b i l i t y of the profession are b e n e f i c i a l r o l e s currently served by medical mal-prac t i c e l i t i g a t i o n (see Chapter I I ) . Any a l t e r n a t i v e to l i t i g a t i o n should therefore attempt to incorporate the achievement of these goals within i t s structure. Several possible a l t e r n a t i v e s to medical malpractice l i t i g a t i o n have been alluded to i n the foregoing section of t h i s chapter. These include s o c i a l insurance schemes, no f a u l t insurance schemes and Calabresi's scheme. In addition, i t w i l l be useful to examine "voluntary a r b i t r a t i o n " since t h i s promises to be the only successful a l t e r n a t i v e to l i t i g a t i o n recently introduced i n the United States. (a) Medical Malpractice L i t i g a t i o n In order to provide a bench mark for examining alternate schemes, the achievement of the goals by medical malpractice l i t i g a t i o n should be reviewed. Medical malpractice l i t i g a t i o n provides a l i m i t e d incentive for primary and secondary cost reduction since i t applies only to those cases where negligence or trespass to the person can be shown. Unsuccessful and i n e l i g i b l e claims are not covered. In addition, medical malpractice l i t i g a t i o n has extremely high t e r t i a r y or administrative costs. Although l i t i g a t i o n promotes the goals of p r a c t i t i o n e r a c c o u n t a b i l i t y and account-a b i l i t y of the profession, i t i s c l e a r l y i n e f f e c t i v e i n promoting medical accident cost reduction. (b) Voluntary A r b i t r a t i o n Ladimer and Solomon define a r b i t r a t i o n as "a process, subject to law, 103 whereby parties may submit s p e c i f i e d present or future controversies to 21 a neutral party for f i n a l determination". The two p a r t i e s j o i n t l y s e l e c t an a r b i t r a t o r (usually a lawyer) who w i l l s e t t l e the dispute ac-cording to the current precepts of the law. The d e c i s i o n of the a r b i t r a t o r i s open to appeal, however, the appeal may be launched only on a point of law. The advantages of voluntary a r b i t r a t i o n over l i t i g a t i o n are several In the f i r s t place, the a r b i t r a t o r i s not t i e d to the proceedural l i m i t a t i o n s of the court i n hearing evidence and consequently, has greater f l e x i b i l i t y i n obtaining information pertaining to the case. Secondly, a r b i t r a t i o n 22 may tone down the adversary nature of the hearings. T h i r d l y , a r b i t r a t i o n has p o t e n t i a l l y lower administrative costs, p a r t i c u l a r l y since the f i n d i n g s of the a r b i t r a t o r are binding and do not allow for appeals except on a 23 point of law. F i n a l l y , a r b i t r a t i o n has the p o t e n t i a l to be l e s s time consuming and l e s s open to delay than l i t i g a t i o n . > With the current tendency of the courts i n Canada to favour the doctor, i t i s u n l i k e l y that voluntary a r b i t r a t i o n would be accepted by the Canadian Medical Protective Association. This aside, voluntary a r b i t r a t i o n has few advantages over l i t i g a t i o n when i t comes to accident cost minimization. Since decisions would be based on the accepted precepts of the law, success i n a r b i t r a t i o n would be l i m i t e d only to those cases where negligence or trespass to the person may be shown. As a consequence, the deterrent value of a r b i t r a t i o n would be l i m i t e d . In addition, t h i s would l i m i t the s i t u a t i o n s i n which secondary accident costs would be covered. As was mentioned e a r l i e r , however, a r b i t r a t i o n could p o t e n t i a l l y -reduce t e r t i a r y or administrative costs. A r b i t r a t i o n would provide' some p r a c t i t i o n e r a c c o u n t a b i l i t y . Account-104 a b i l i t y of the profession, however, would be l i m i t e d by the adherence of the a r b i t r a t o r to the accepted precepts of the law. This, i n turn, would reduce the already small volume of l i t i g a t i o n , thereby reducing the op-portunity for t e s t i n g established precedents and developing new precedents. (c) A S o c i a l Insurance Scheme Under a s o c i a l insurance scheme, a l l c i t i z e n s would contribute to a c e n t r a l , government administered pool which would be used to cover the costs of losses due to medical accidents. In return f o r guaranteed com-pensation, l i t i g a t i o n would be disallowed. Although s o c i a l insurance would spread secondary costs over a large population and thereby minimize these costs, i t would f a i l to provide any incentive for primary cost reduction. T e r t i a r y or administrative costs should be r e l a t i v e l y low although d i f f i c u l t i e s i n determining whether losses resulted from medically caused i n j u r i e s might r a i s e these costs. A s o c i a l insurance scheme could i n d i r e c t l y r e s u l t i n greater p r a c t i t i o n e r a c c o u n t a b i l i t y . The government would be able to monitor the extent and nature of medical accidents and take a c t i o n against doctors found to be accident prone. Accountability of the profession of medicine, however, would not be achieved. O v e r a l l , a s o c i a l insurance scheme provides coverage of secondary costs at a medium t e r t i a r y cost. The scheme could p o t e n t i a l l y promote p r a c t i t i o n e r a c c o u n t a b i l i t y . The goals of primary cost minimization and ac c o u n t a b i l i t y of the profession would not be achieved. (d) A No Fault Insurance Scheme A "no f a u l t " insurance scheme would see physicians provide insurance 105 to cover patients' losses due to medical accidents. Such coverage would be guaranteed, thereby doing away with the need to prove " f a u l t " i n the determination of who covers the cost of losses. In order to provide some s p e c i f i c i t y i n deterrence, the pooling of r i s k i n the above scheme would be according to sp e c i a l t y . The pooling of r i s k s and consequently costs, according to sp e c i a l t y would provide an incentive for primary cost reduction. Secondary costs would be covered by spreading the costs over a small group. Nevertheless, such narrow cost spreading would probably be acceptable, due to the generally high incomes of physicians. Compared to l i t i g a t i o n t e r t i a r y or administrative costs would be r e l a t i v e l y low. Neither p r a c t i t i o n e r accountability nor accou n t a b i l i t y of the profession would be maintained i n a no f a u l t system. Although t h i s scheme promises to produce low accident costs, i t has one major d i s a b i l i t y , i t would promote non treatment of the patient i n s i t u a t i o n s where the costs of non treatment are greater than the p o t e n t i a l accident costs of trea t i n g the patient. (e) Calabresi's Scheme Calabresi v i s u a l i z e s h i s scheme as occurring within the framework 24 of a Health Maintenance Organization (H.M.O.). The H.M.O. would not only contract with the patient to provide a l l medical services, but also contract to provide unemployment insurance and l i f e insurance. Calabresi v i s u a l i z e s the doctor as being a s a l a r i e d employee of the H.M.O. However, i t would probably be necessary to t i e the doctor's remuneration more c l o s e l y into the f i n a n c i a l performance of the H.M.O. i f any influence i s to be exerted over h i s c l i n i c a l behaviour. I t w i l l be assumed that such 106 a system has been i n s t i t u t e d . The incentive i n Calabresi's scheme i s not only to keep the patient a l i v e but also to keep him productive. T h e o r e t i c a l l y , the doctor would consider, i n terms of h i s economic l o s s , the r i s k s of death or d i s a b i l i t y of t r e a t i n g the patient according to d i f f e r e n t modes of treatment. He would then choose that treatment with the lowest r i s k and thereby minimize his losses. This theory may be questioned on three points. In the f i r s t place, i t i s questionable whether the economic incentives proposed are s u f f i c i e n t l y strong to intrude s i g n i f i c a n t l y into medical decision making. Secondly, i t i s doubtful whether doctors would be able to determine the true r i s k s of treatment. F i n a l l y , the degree of influence of the doctor's actions over the occurrence of death or d i s a b i l i t y may be exceedingly l i m i t e d . Nevertheless, Calabresi's scheme presents a novel proposal to focus the physician's attention not only on the medical outcome of the treatment but also on the implications to the patient of that outcome. In Calabresi's scheme, the major secondary costs of medical accidents, death and unemployment, would be covered. To obtain compensation f o r other losses or costs would require the patient, or h i s family, to under-take l i t i g a t i o n proceedings. F i n a l l y the administrative costs of Calabresi's scheme would be comparatively low when compared to l i t i g a t i o n . Although the scheme provides v i r t u a l l y no d i r e c t opportunity f o r p r a c t i t i o n e r accountability, i t s economic incentives could, i n e f f e c t , achieve that goal. Physicians with poor judgement records could f i n d themselves priced out of pr a c t i c e as a r e s u l t of high insurance premiums. With respect to account a b i l i t y of the profession, the scheme would be r e l a t i v e l y i n e f f e c t i v e . O v e r a l l , Calabresi's scheme promises to provide r e l a t i v e l y low ac-107 cident costs with a l i m i t e d degree of p r a c t i t i o n e r a c c o u n t a b i l i t y . Conclusions I f , as Calabresi contends, the r e a l goal of accident law i s the minimization of accident costs, then medical malpractice l i t i g a t i o n i s r e l a t i v e l y i n e f f e c t i v e . I t provides l i m i t e d minimization of primary and secondary costs at a high t e r t i a r y or administrative cost. Voluntary a r b i t r a t i o n i s s i m i l a r l y i n c l i n e d , although under a r b i t r a t i o n there i s a p o t e n t i a l f or reducing administrative costs. A r b i t r a t i o n , however, would reduce the opportunity f o r the development of new precedents, and consequently, a c c o u n t a b i l i t y of the profession would be restrained. A s o c i a l insurance scheme would e f f e c t i v e l y cover and thereby minimize secondary costs at a low t e r t i a r y cost. I t would, however, provide no incentive f o r primary cost minimization. No f a u l t insurance would p o t e n t i a l l y produce low accident costs. I t would, however, f a i l to account for s i t u a t i o n s i n which the costs of non treatment are greater than the p o t e n t i a l accident costs of treatment. F i n a l l y , Calabresi's scheme promises to produce r e l a t i v e l y low accident costs. I t i s , however, based on a number of questionable premises. In the f i n a l analysis, there i s no perfect scheme for accident cost minimization. In theory, Calabresi's scheme would be most e f f e c t i v e i n achieving t h i s goal. I t presents a novel approach i n providing an i n -centive to produce the optimum r e s u l t of the doctor-patient encounter. Its shaky t h e o r e t i c a l foundation, however, leads to the suggestion that i t should be studied and tested i n a p i l o t project before being attempted on a wider scale. 108 FOOTNOTES - CHAPTER VI 1. I v a n I l l i c h , L i m i t s to M e d i c i n e , ( T o r o n t o : M c C l e l l a n d and S t e w a r t , 1976). 2. IBID, p. 27. 3. J a y W. Smit h , L a r r y G. S e i d l and L e i g h t o n E. C l u f e , " S t u d i e s on the E p i d e m i o l o g y o f A d v e r s e Drug R e a c t i o n s , " A n n a l s o f I n t e r n a l M e d i c i n e 65 ( O c t o b e r , 1966):629-640. 4. G.H. Lawrey, "The P r o b l e m of H o s p i t a l A c c i d e n t s to C h i l d r e n , " P e d i a t r i c s 32 (1963):1064-1068. 5. J.T. McLamb and R.R. H u n t l e y , "The H a z a r d s o f H o s p i t a l i z a t i o n , " S o u t h e r n M e d i c a l J o u r n a l 60 (1967):469-472. 6. E l i P. B e r n z w e i g , " M a l p r a c t i c e - The s i t u a t i o n i n the U n i t e d S t a t e s , " P r o c e e d i n g s of t h e N a t i o n a l C o n f e r e n c e on  H e a l t h and the Law, ( O t t a w a : C a n a d i a n H o s p i t a l A s s o c i a t i o n , 1975) 7. D i s a b i l i t y I n s u r a n c e p r o v i d e s income p r o t e c t i o n f o r t h o s e f o r t u n a t e enough t o be c o v e r e d by t h e i r e m p l o y e r . 8. Guido C a l a b r e s i , The C o s t s of A c c i d e n t s , (New H a v e n : Y a l e U n i v e r s i t y P r e s s , 1970). 9 . IBID , P . 26. 10. IBID, P . 27-28. 11. IBID, P . 68. 12. IBID , P . 95. 13. IBID. 14 . IBID , P . 113. 15 . IBID, P . 115 . 16 . Such.. a scheme i s t h r o u g h p r i v a t e c o m p a n i e s . 17. C a l a b r e s i , The C o s t s of A c c i d e n t s , p. 43. 18. IBID, p. 278. 109 FOOTNOTES - CHAPTER VI 20. Guido C a l a b r e s i , " M e d i c a l M a l p r a c t i c e : C l o s i n g t h e C i r c l e , " U n i v e r s i t y of T o r o n t o Law J o u r n a l ( I n p u b l i c a t i o n ) . 21. I r v i n g L a d i m e r and J o e l Solomon, " M e d i c a l M a l p r a c t i c e A r b i t r a t i o n : Laws, Programs, C a s e s , " The I n s u r a n c e Law  J o u r n a l , no. 653 ( J u n e , 1977):335-357. 22. H a i n e s a r g u e s t h a t the a d v e r s a r y s y s t e m i s an u n s a t i s f a c t o r y way of s e t t l i n g a m e d i c a l m a l p r a c t i c e d i s p u t e . He s u g g e s t s : t h a t the a d o p t i o n of an " I n q u i s i t o r i a l " s y s t e m o f j u s t i c e , as f o u n d i n Germany, would be more a p p r o p r i a t e . E.L. H a i n e s , "The M e d i c a l P r o f e s s i o n and t h e A d v e r s a r y P r o c e s s , " Osgoode H a l l Law J o u r n a l 11 ( J a n u a r y , 1973):41-53. 24. C a l a b r e s i , " M e d i c a l M a l p r a c t i c e " . 110 CHAPTER VII CONCLUSIONS In addition to the general conclusions of the study, i t i s only f i t t i n g (since t h i s thesis i s a requirement f o r a degree i n health services planning), that an examination be made of the implications of medical malpractice l i t i g a t i o n on planning i n the health care sector. Implications of Medical Malpractice L i t i g a t i o n on Planning In Chapter VI, i t was noted that judgements of l i t i g a t i o n i n e f f e c t provide an informal "code of behaviour". I t i s informal i n that i t i s not c o d i f i e d or formally enforced except through the process of l i t i g a t i o n . Compliance with the code i s not mandatory, however, c e r t a i n l i a b i l i t i e s are accepted i f the code i s not followed. With respect to medical malpractice l i t i g a t i o n , the code provides guidelines f o r the performance of a c t i v i t i e s , not only by physicians, but by a l l sectors of the health care system. For example, the court has ruled that surgeons are expected to ensure that instrument and swab counts are c o r r e c t l y performed before and a f t e r a l l operations. In turn, h o s p i t a l s are expected to provide the necessary resources to enable these counts to be adequately performed. I f the r u l i n g s of the court influence the way a c t i v i t i e s i n the health care system are performed, then planners must also take them into account when developing new or alternate modes of d e l i v e r i n g health I l l s e rvices. The r u l i n g s of the court, along with the numerous statutes related to health and the p r o v i s i o n of health services, consequently provide a basic set of planning constraints. The impact of court r u l i n g s on the planning process i n Canada i s r e l a t i v e l y minor. This i s to be expected, since i n Canada the courts are not viewed, nor have they accepted, a l e g i s l a t i v e r o l e . The impact of l e g i s l a t i o n , however, i s considerable. "*" The placing of health under the j u r i s d i c t i o n of the provinces i n the B r i t i s h North America Act has led to p r o v i n c i a l c o n t r o l over the planning and the provision of services. This has placed a considerable constraint on the Federal Government i n i t s e f f o r t s i n the health planning f i e l d . For example, i n order to achieve i t s aim of ensuring the p r o v i s i o n of medical services f o r a l l c i t i z e n s through a government financed health insurance scheme, the Federal Government was forced to r e s o r t to bribery i n the form of a 50:50 cost sharing scheme. In return for covering 50% of the costs of the plan ,lthe Federal Government s p e c i f i e d c e r t a i n conditions to which the p r o v i n c i a l plans would have to conform (e.g. universal coverage, p o r t a b i l i t y e t c . ) . Having achieved t h e i r purpose of the implementation of a r e l a t i v e l y standard and comprehensive form of government financed medical care insurance, the Federal Government has recently negotiated i t s way out of the cost sharing agreement. The above example presents the s i t u a t i o n where l e g i s l a t i o n a f f e c t s the implementation process. In turn, l e g i s l a t i o n can also a f f e c t the planning process. For example, the Federal Government has been attempting to develop a sophisticated data f i l e on Canadian physicians for the pur-pose of manpower planning. In view of the considerable i n i t i a t i v e taken 112 by the Federal Government i n an area of p r o v i n c i a l j u r i s d i c t i o n , the provinces have demanded greater consultation i n t h i s matter. The over-a l l e f f e c t has been that the Federal i n i t i a t i v e has been s t i f f l e d , while 3 the Federal Government seeks the co-operation of each of the provinces. Similar administrative constraints not only face planners at the Federal l e v e l but also at other l e v e l s of the health care system. A good example i s the transfer of procedures t r a d i t i o n a l l y performed by physicians to other health workers. Proposals for such transfers are usually based on the proposition that the other category of health workers can perform the procedure as competently or better than doctors and at a lower cost. For example, i n the neonatal intensive care unit at The Hospital for Sick Children i n Toronto, i t was proposed that s p e c i a l procedure nurses be authorized to perform " h e e l s t i c k punctures" to obtain blood for biochemistry t e s t s . The motivation for the proposal was that the area was understaffed with physicians and that t h i s procedure could best be performed by the s p e c i a l procedure nurses. Since " h e e l s t i c k " punctures l i e within the domain of the p r a c t i c e of medicine, permission was sought from the College of Physicians and Surgeons of Ontario to allow nurses to perform t h i s procedure. The College s t i p u l a t e d that only nurses who had undertaken an approved s p e c i a l course could be authorized to perform the procedure. There i s a l i m i t e d danger i n the above system i n that i t i s possible that the courts could over-rule the d e c i s i o n of the College or l i c e n s i n g body authorizing the transfer of r e s p o n s i b i l i t y . Such a decision could conceivably place the l i c e n s i n g body i n a p o s i t i o n of l i a b i l i t y with respect to a malpractice claim. The transfer of r e s p o n s i b i l i t i e s from physicians to other l e s s q u a l i f i e d and l e s s expensive p r a c t i t i o n e r s , 113 therefore, presents a p a r t i c u l a r problem to the health planner i n that i t may only be achieved with great d i f f i c u l t y . In conclusion, the impact of medical malpractice l i t i g a t i o n on health care planning i n Canada i s minimal. Of f a r more s i g n i f i c a n c e i s l e g i s l a t i o n . This provides considerable constraints to the planner i n developing and p a r t i c u l a r l y implementing h i s plans. In the United States where the j u d i c i a r y plays a l e g i s l a t i v e r o l e , the impact of l i t i g a t i o n on health care planning i s probably greater. Conclusions of the Study Overall, the study suggests that medical malpractice l i t i g a t i o n provides an inadequate scheme for compensating patients f o r losses due to medically caused i n j u r i e s . Not only i s i t applicable to a l i m i t e d number of medical accidents ( i . e . those caused by negligence or trespass to the person), but i t also presents b a r r i e r s to e l i g i b l e claims. F i n a l l y , i t provides l i t t l e or no incentive f o r accident costs minimization. Af t e r examining a number of a l t e r n a t i v e s to l i t i g a t i o n , the study suggests that there i s no i d e a l scheme f o r compensating patients f o r losses r e s u l t i n g from medical accidents. A scheme developed by Calabresi shows some promise. This scheme involves doctors providing t h e i r patients with unemployment insurance and l i f e insurance coverage. Presumably, the economic incentive under such a scheme would be to keep patients a l i v e and productive. The scheme would face a v a r i e t y of problems i n implementation, the most notable being physician resistance. The medical profession would argue, with some j u s t i f i c a t i o n , that they would be l i a b l e f o r costs which are often beyond th e i r control ( i . e . due to personal habits or environ-114 mental f a c t o r s ) . Nevertheless, the proposal deserves to be tested. In p a r t i c u l a r , c e r t a i n of the assumptions of the scheme (e.g. that doctors' c l i n i c a l behaviour may be altered through economic sanctions) needs testing, and t h i s could best be achieved through a p i l o t p r o j ect. In the meantime, there i s a need to revise the current scheme of compensation through t o r t law. Special statutes of l i m i t a t i o n not only for physicians, but also f o r h o s p i t a l s , deserve to be abolished. "Costs of court" should only be assigned against the p l a i n t i f f i n si t u a t i o n s where the p l a i n t i f f ' s claim i s c l e a r l y of questionable merit. Other possible areas of reform which require more study and consideration include the allowance and expansion of contingency fees and the allowance of the doctrine of "res ipsa l o q u i t u r " i n medical malpractice cases. The study has also suggested other areas that may require reform. With respect to mechanisms of acco u n t a b i l i t y , i t i s suggested that h o s p i t a l s should increase the scope of acc o u n t a b i l i t y they require of physicians. This i s slowly being forced on the ho s p i t a l s by the Canadian Council of Ho s p i t a l A c c r e d i t a t i o n . P r o v i n c i a l l i c e n s i n g agencies need to be more v i s i b l e . Their complaint and d i s c i p l i n a r y r e s p o n s i b i l i t i e s should be advertised on a continuing basis to ensure that the population i s aware of t h e i r existence. In addition, lay representation should be on a l l complaint and d i s c i p l i n a r y committees, and the d e c i s i o n of these committees should be subject to appeal to an impartial authority. F i n a l l y , l i c e n s i n g agencies should monitor a l l malpractice s u i t s within t h e i r j u r i s d i c t i o n and take d i s c i p l i n a r y action when i t i s warranted. A f i n a l area that requires reform i s the Canadian Medical Protective Association. Due to i t s overwhelming emphasis on protecting i t s members, the CM.P.A. has developed a reputation of being uncompromising and 115 unsympathetic. These c r i t i c i s m s aside, the C.M.P.A. has f a i l e d to grasp an a d d i t i o n a l r o l e of attempting to prevent the actual occurrence of medical malpractice. The C.M.P.A. needs to change i t s emphasis from one of protection to one of prevention. I t i s i n an i d e a l p o s i t i o n to accept such a ro l e since i t not only has high legitimacy: i n the eyes of the medical profession, but also i s aware of the many reasons behind successful and unsuccessful malpractice claims. Towards t h i s end, the C.M.P.A. should c o l l e c t meaningful s t a t i s t i c s not only of the volume and cost of l i t i g a t i o n , but also of the causes of l i t i g a t i o n . In ad-d i t i o n , i t should attempt to inform and educate i t s members i n matters of medical jurisprudence. 116 FOOTNOTES - CHAPTER VII 1. I t i s a paradox that l e g i s l a t i o n often provides the ve h i c l e for the implementation of plans. Once implemented, however, that l e g i s l a t i o n provides a constraint for the development of future plans. 2. Canada, Medical Care Act, 1966-1967. Revised Statutes of Canada, 1970, C. M-8, s.4. 3. The author i s currently employed i n the Ontario Physician Manpower Data Centre and has consequently been able to d i r e c t l y observe the manoeuvering of the various p a r t i e s involved i n physician manpower planning i n Canada. 4. The author was previously employed by The Hospital f o r Sick Children, Toronto, and was consequently able to observe the process of th i s transfer of function from physicians to nurses. 5. Krever provides a thorough discussion of the conditions under which res ipsa loquitur should be allowed i n medical malpractice claims i n Hobson v. Munkley (1977), 14 O.R. (2d) 575 117 BIBLIOGRAPHY BOOKS Burstein, A l v i n G. and Bowden, Charles L. The Psychosocial Basis of Medical P r a c t i c e . Baltimore: The Williams and Wilkins Company, 1974. Calabresi, Guido. The Costs of Accidents. New Haven: Yale University Press, 1970. Fleming, John G. An Introduction to the Law of Torts. London: Oxford University Press, 1967. . The Law of Torts. 5th ed. Sydney: The Law Book Company Ltd., 1971. Freidson, E l i o t . Patients Views of Medical P r a c t i c e . New York: Russell Sage Foundation, 1961. . Professional Dominance. New York: Atherton Press, 1970. . The Profession of Medicine. New York: Dodd Mead and Company, 1971. Grove, J . W. Organized Medicine i n Ontario. Toronto: Queen's Pr i n t e r , 1969. Heuston, R. F. V. Salmond on the Law of Torts. London: Sweet and Maxwell, 1973. I l l i c h , Ivan. Limits to Medicine. Toronto: McClelland and Stewart, 1976. K l e i n , Rudolf. Complaints Against Doctors. Kent: The Stanhope Press, 1973. Meredith, W. L. J . Malpractice L i a b i l i t y of Doctors and Hospitals. Toronto: Carswell, 1956. Watson, Garry D.; Borins, Stephen; and Williams, N e i l . Canadian  C i v i l Procedure. Toronto: Butterworths, 1973. Williams, Jeremy S. Limitations of Actions i n Canada. Toronto: Butterworths, 1972. Wright, C e c i l A. Cases on the Law of Torts. Toronto: Butterworths, 1971. 118 BOOKS Wright, C e c i l A. and Linden, A l l e n M. Canadian Tort Law: Cases, Notes and Materials. Toronto: Butterworths, 1975. ARTICLES Alpert, J . J . ; Kosa, J . ; Haggerty, L. J . ; Robertson, L. S.; and Haggerty, Margaret. "Attitudes and S a t i s f a c t i o n of Low Income Families Receiving Comprehensive P e d i a t r i c CareV. American Journal of Public Health 60 (March, 1970): 499-506. Bernzweig, E l i P. "Malpractice, the S i t u a t i o n i n the United States". Proceedings of the National Conference on Health and the  Law. Ottawa: Canadian Hospital Association, 1975. • "The Malpractice C r i s i s : A Government Expert's View". Insurance Counsel Journal 39 (January, 1972): 24-26. Calabresi, Guido. "Medical Malpractice: Closing the C i r c l e " . U n i v e r s i t y of Toronto Law Journal ( i n p u b l i c a t i o n ) . Deisher, R. W.; Engel, W. L.; Spielholz, R.; and Standfast, Susan J . "Mothers' Opinions of Their P e d i a t r i c Care". P e d i a t r i c s 35 (January, 1965): 82-90. Donabedian, A. "Promoting Quality Through Evaluating the Process of Patient Care". Medical Care 6 (March, 1968): 181-202. Francis, V.; Korsch, B. H.; and Morris, Marie J . "Gaps i n Doctor-Patient Communication: Patients' Response to Medical Advice". New England Journal of Medicine 280 (March, 1969): 535-540. Freidson, E l i o t . " C l i e n t Control and Medical P r a c t i c e " . American  Journal of Sociology 65 ( A p r i l , 1960): 374-382. Geekie, D. A. "The C r i s i s i n Medical Malpractice: W i l l i t Spread to Canada?". Canadian Medical Association Journal 113 (August, 1975): 327-334. Grange, S. G. M. vThe S i l e n t Doctor v. The Duty to Speak". Osgoode  H a l l Law Journal 11 (January, 1973): 81. Haines, E. L. "The Medical Profession and the Adversary Process". Osgoode H a l l Law Journal 11 (January, 1973): 41-53-119 ARTICLES Ladimer, I r v i n g and Solomon, J o e l . "Medical Malpractice A r b i t r a t i o n : Laws, Programs, Cases". The Insurance Law Journal 653 (June, 1977): 335-357. Lawry, G. H. "The Problem of Hospital Accidents to Children". P e d i a t r i c s 32 (1963): 1064-1068. Linden, A l l e n M. "The Negligent Doctor". Osgoode H a l l Law Journal 11 (January, 1973): 31-39. Linn, Lawrence S. "Factors Associated with Patient Evaluation of Health Care". Millbank Memorial Fund Quarterly 53 ( F a l l , 1975) : 531-548. Mahon, S. "What Every M.D. Should Know About the M.R.C. (Medical Review Committee)". Ontario Medical Review 43 (November, 1976) : 585. McLamb, J . T. and Huntley, R. R. "The Hazards of H o s p i t a l i z a t i o n " . Southern Medical Journal 60 (1967): 469-472. McLarren, John P. S. "Of Doctors, Hospitals and L i m i t a t i o n " . Osgoode H a l l Law Journal 11 (January, 1973): 85-101. Meisel, Alan. "The Expansion of L i a b i l i t y f o r Medical Accidents: From Negligence to S t r i c t L i a b i l i t y by Way of Informed Consent". Nebraska Law Review 56 (January, 1977): 51-152. Roemer, Milton. " C o n t r o l l i n g and Promoting Quality i n Medical Care". Law and Contemporary Problems 35 (March, 1970): 284. Rozovsky, Lome E. "Consent to Treatment". Osgoode H a l l Law Journal 11 (January, 1973): 103-113. Rubsamen, D. S. "The Evolution of Medical Malpractice L i t i g a t i o n i n the United States". Canadian Medical Association  Journal 113 (August, 1975): 334-341. Russell, P. H. "The P o l i t i c a l Role of the Supreme Court of Canada i n i t s F i r s t Century". Canadian Bar Review 53 (1975): 576-593. Saypol, George. "Medical Malpractice: Threat to Quality Care". New York State Journal of Medicine 75 (February, 1975): 427-430. Sharpe, G i l b e r t S. "Periods of L i m i t a t i o n and Medical Malpractice: A New Act for Ontario". Chitty's Law Journal 23 (1975): 145-155. Sherman, I r v i n . "The Standard of Care i n Malpractice Cases". Osgoode H a l l Law Journal 4 (1966): 222-242. 120 ARTICLES Smith, Jay W.; S e i d l , Larry G.; and Clufe, Leighton E. "Studies on the Epidemiology of Adverse Drug Reactions". Annals  of Internal Medicine 65 (October, 1966): 629-640. Stott, N. C. H. and Davis, R. H. " C l i n i c a l and Administrative Review i n General P r a c t i c e " . Journal of the Royal  College of General P r a c t i t i o n e r s 25 (December, 1975): 888-896. Thompson, Brian J . "Claims A r i s i n g out of the Relationship between Doctor and Patient". Law Society of Upper  Canada Special Lectures (1963): 188. Warner, Morton. "Family Medicine i n a Consumer Age". Canadian  Family Physician 23 (May, 1977): 48-56. Weinerman, E. R. "Patients' Perceptions of Group Medical Care". American Journal of Public. Health 54 (June, 1964): 880-889. Welch, Claude E. "Medical Malpractice". New England - Journal of Medicine 292 (June, 1975): 1372-1376. Wilson, Robert N. and Bloom, Samuel W. "P a t i e n t - P r a c t i t i o n e r Relationships". In Handbook of Medical Sociology p.315. Edited by Howard E. Freeman; Sol Levine and Leo G. Reeder. Englewood C l i f f s , New Jersey: Prentice H a l l , 1972. Wolfe, Samuel and Badgely, Robin. "The Family Doctor". Millbank  Memorial Fund Quarterly 50 ( A p r i l , 1972): 75. LEGAL CASES Abramzik v. Brenner (1967), 65 D.L.R. (2d) 651. Anderson v. Chasney (1949), 4 D.L.R. 71. Booth v. Toronto General Hospital (1910), 17 O.W.R. 118. C r i t s v. Sylvester (1956), O.R. 132. Darling v. Charlston Memorial Hospital (1965), 33 111. (2d) 326, 211 N.E. (2d) 253. Donoghue v. Stevenson (1932), A.C. 562. Gent v. Wilson (1956), O.R. 257. 121 LEGAL CASES Hobson v. Munkley (1977), 14 O.R. (2d) 575. Ja r v i s v. International Nickel Ltd. (1928-1929), 63 O.L.R. 564. Johnston v. Wellesley Hospital (1971), 2 O.R. 108. Lamphie v. Philpos (1838), 8 C. & P. 475. Leighton v. Gould (1853), 27 N.H.R. 460. LeLievre v. Gould (1893), 1 Q.B. 491. Mulloy v. Hop Sang (1935), 1 W.W.R. 714. Ostrowski v. Lotto (1969), 1 O.R. 344. Penner v. Theobald (1962), 35 D.L.R. (2d) 700. Pierce v. Strathroy Hospital (1924-1925), 27 O.W.N. 180. Roe & Wooley v. Minist r y of Health (1954), 2 Q.B. 6'6. S u l l i v a n v. McWilliams (1893), 20 O.A.R. 627. Taylor v. Reid (1906), 13 O.L.R. 205. Town v. Archer (1902), 4 O.L.R. 393. Wilson v. Swanson (1956), S.C.R. 804. STATUTES Ontario. An Act to Amend the Ontario Medical Act, 1887. Statutes of Ontario, 1887. c. 24. Ontario. Health D i s c i p l i n e s Act, 1974. Statutes of Ontario, 1974. c. 47. Quebec. Professional Code, 1973. Statutes of Quebec, 1973. c. 43. Saskatchewan. Medical Profession Act. Revised Statutes of Saskatchewan, 1965. Cap. 303. 122 GOVERNMENT REPORTS Ontario. M i n i s t r y of Health. Report of the Committee on the Healing Arts. Toronto: Queen's P r i n t e r , 1971. Ontario. M i n i s t r y of the Attorney General. Report of the Task Force on Legal Aid. Toronto: Queen's P r i n t e r , 1974. U.S. Department of Health Education and Welfare. Report and  Appendix, The Secretary's Commission on Medical Mal- pract i c e, (D.H.E.W # (05) 73-89), 1973. MISCELLANEOUS Canadian Medical Protective Association. Constitution and Bylaws. Ottawa, 1973. College of Physicians and Surgeons of Ontario. Annual and Interim  Reports, 1973-1977. Ontario. 123 •;' Appendix A. •: ;;: ten 5 5 5 University Avenue • Toronto • Ontario • C a n a d a M 5 G 1X8 -Phone (416) 5 9 7 - 1 5 0 0 F e b r u a r y 7, 1977 Dear As a r e q u i r e m e n t f o r a M a s t e r ' s degree i n H e a l t h S e r v i c e s P l a n n i n g , I am w r i t i n g a t h e s i s on m e d i c a l m a l p r a c t i c e l i t i g a t i o n . L i t i g a t i o n p r o v i d e s one mechanism by which t h e consumer o f h e a l t h s e r v i c e s can c e n s o r the p r o v i d e r . C o n c e i v a b l y , a n o t h e r mechanism i s t o w i t h h o l d payment o f t h e f e e t o t h e p r o v i d e r . S i n c e i n Canada, f e e payments t o d o c t o r s a re now c o n t r o l l e d by a t h i r d p a r t y ( p r o v i n c i a l governments), I am i n t e r e s t e d i n d e t e r m i n i n g how t h i s t h i r d p a r t y would respond to t he consumer's r e q u e s t t o w i t h h o l d payment. S i n c e , i n your p r o v i n c e , your o r g a n i z a t i o n i s r e s p o n s i b l e f o r the payment of m e d i c a l f e e s , I would g r e a t l y a p p r e c i a t e an i n d i c a t i o n of how you would r e s p o n d t o a r e q u e s t from a consumer o f m e d i c a l s e r v i c e s t o w i t h h o l d payment o f f e e s t o a d o c t o r . I would a l s o be i n t e r e s t e d i n knowing whether you r e c e i v e such r e q u e s t s . Thanking you i n advance f o r your a s s i s t a n c e . S i n c e r e l y , A l a s t a i r Macdonald, A d m i n i s t r a t i v e A s s i s t a n t Department of P a e d i a t r i c s ' Appendix B. Mr. A. Macdonald The H o s p i t a l for Sick Children 555 University Avenue Toronto, Ontario M 5 G 1X8 Q U E S T I O N N A I R E Province Name of L i c e n s i n g Body Name of Individual Completing the Questionnaire Position of Individual Completing the Questionnaire . Telephone Number 1. Describe briefly how your organization handles verbal (e.g. telephone) complaints concerning a l i c e n s e d doctor. 2. Describe briefly how your organization handles written complaints concerning a l i c e n s e d doctor. 125 What is the composition of your d i s c i p l i n a r y committee (e.g. 3 doctors, 1 lay member) ? How and by whom is the d i s c i p l i n a r y committee appointed? Is your organization involved in the negotiation of fee schedules with the pro v i n c i a l government? Yes No Do you automatically review a l l confirmed cases of medical malpractice to determine whether d i s c i p l i n a r y action should be taken? Yes No If yes, how do you monitor both "out of court settlements" and " i n court judgements" ? 126 3. 7. If the following data is a v a i l a b l e , please complete the following table. Year 1965 1970 1973 1974 1975 Number of Verbal Complaints Number of Written Complaints ; Number of Complaints Handled by D i s c i p l i n a r y Committee Number of D e c i s i o n s by D i s c i p l i n a r y Committee , made in favour of the j doctor 1 Number of D e c i s i o n s by D i s c i p l i n a r y Committee made against the doctor 8. Do you have someone a v a i l a b l e during regular office hours ( 9:00 a.m. to 5:00 p.m.) to handle complaints? Yes No If yes, who? (title) 9. Do you anticipate making any notable changes in the system of handling complaints and d i s c i p l i n a r y proceedings in the near future? Please s p e c i f y . Appendix C. 127 the list of certificants or Fellows of that College shall not use a specialty qualification in any branch of medicine. O. Reg. 577/75. s. 22. 23. ;—(1) The Counci l shall determine the informa-tion required for the compilation of statistics with respect to the supply, distr ibution, qualifications and professional activities of members and may direct the Registrar to obtain the required informa-tion. (2) Upon the written request of the Registrar, members shall provide to the Registrar the informa-tion requested for the compilation of statistics. O. Reg. 577/75, s. 23. 24. The Registrar is the chief administrative officer of the College and is subject to the direction of the Council . O. Reg. 577/75, S: 24. 25. The decisions of the Discipline Committee shall be published by the College in its annual report and may be published by the College in any other publication of the College, and where a member has been found guilty of professional misconduct or incompetence, the full name and address of the member may be stated and a summary of the charge, the decision and the penalty imposed may be stated and the text or substance of any restriction on the licence of the member or of any reprimand may be added, but where a member has been found not gui lty of professional misconduct or incompetence, the identity of the member shall not be published but the substance of the proceed-ings may be published without identification of the parties for the purpose of publishing advice to the member or to the profession. O. Reg. 577/75, s. 25. 26. For the purpose of Part III of the Ac t , "professional misconduct" means, 1. failure by a member to abide by the terms, conditions or l imitations of his l icence; 2. contravention of any provision of Part III of the Act , The liealth Insurance Act, 1972 or the regulations; 3. failure to maintain the records that are required to be kept respecting a member's patients; 4. having a conflict of interest; 5. using a term, title or designation other than one authorized or using a term, title or designation that is prohibited, by this Regulat ion ; 6. permitt ing, counselling or assisting any person who is not licensed under Part III of the Act to engage in the practice of medioir.r except a? provided for in (he Act or this Regulat ion ; 7. charging a fee that is in excess of the fee in the schedule of fees of the Ontario Medical Association without prior notif i -cation to the patient as to the excess amount of the fee; 8. charging a fee that is excessive in relation to the services performed; 9. failure to carry out the terms of an agree-ment with a patient; 10. selling a professional account to a third par ty ; 11. refusing to render a medically necessary service unless payment of the whole or part of the fee is received in advance of the service being rendered; 12. requiring payment for a service that is insured under The Health Insurance Act, 1972 as a condition to be met before completing a claim card for submission under that Act or, before providing an itemized account of the services where a request is made for an itemized account by the patient or a representative of the pat ient ; 13. offering a reduction for prompt payment of an account or charging interest except where interest has been granted in a judg-ment of a court ; 14. charging a fee for services not performed; 15. falsifying a record in respect of the examination or treatment of a patient; 16. knowingly submitt ing a false or misleading account or false or misleading charges for services rendered to a pat ient ; 17. announcing or holding out to the public that the member is a specialist or is spe-cially qualified in a branch of medicine where the member is not qualified as a specialist; 18. engaging in the practice of medicine while the abi l i ty to perform any professional service is impaired by alcohol or a drug ; 19. contravening while engaged in the practice of medicine any federal, provincial or muni -cipal law, regulation or rule or a by - law of a hospital designed to protect the public health ; 20. failure to maintain the standard of practice of the profession; 21. giving information concerning a patient's condition or any professional services per-128 formed for a patient to any person other than the patient without the consent of the patient unless required to do so by law; 22. fail ing to continue to provide professional services to a patient' unt i l the services are no longer required or unti l the patient has had a reasonable opportunity to arrange for the services of another member; 23. making a misrepresentation respecting a remedy, treatment or device; 24. failing to reveal the exact nature of a secret remedy following a proper request for such informat ion; 25. improper use of the authority to prescribe, sell or dispense a drug, including falsifying a record in respect of a prescription or the sale of a d rug ; 26. fail ing to provide within a reasonable time and without cause any report or certificate requested by a patient or his authorized agent in respect of an examination or treat-ment performed by the member; 27. fail ing to carry out the terms of an agree-ment or contract with a hospital ; 28. sexual impropriety with a pa t i e n t ; 29. sharing fees with any person who has referred a patient or receiving fees from any person to whom a. member has referred a patient or requesting or accept-ing a rebate or commission for the referral of a pat ient ; 30. publishing, displaying, distr ibuting or using or permitt ing, directly or indirectly, the publishing, display, distr ibution or use of any advertisement related to the practice of medicine by a member other than, (i) professional cards that contain only the name of the member, a voca-tional designation, academic de-grees, the member's address and telephone number, (ii) an announcement upon commencing practice or changing the location of a member's practice that, a. docs not exceed two standard newspaper columns in width and ten centimeters in depth, b. does not contain references to qualifications, procedures or equipment but may con-tain academic degrees, and c. does not appear more than three times in a newspaper in respect of the commence-ment of the practice or of a change in the location of the practice, (iii) appointment cards that do not con-tain . more than the information contained in a professional card and the time and date of the appoint -ment or appointments, (iv) a telephone directory l ist ing, a. in the white pages that, i. is of dark or light type, i i . where a member is a ce r t i f i ca ted spec ia l i s t , may indicate the spe-cialty designation, i i i . where a member who is not a certificated spe-cialist restricts his prac-tice to one branch of m e d i c i n e m a y i n s e r t after his name "Pract ice l imited to " , iv . does not list office hours, and v. where the practice of medicine is carried . on as a partnership, cl inic, medical centre or other form of medical group lists the name of the p a r t n e r s h i p , c l i n i c , medical centre or other form of medical group and the names of the members with their des-ignations thereunder; b. in the yellow pages that, i . is listed only in the section "Phys ic ians and Surgeons", i i . is only of light type, i i i . where a member is a c e r t i f i c a t e d spec ia l i s t may indicate the spe-c ia l ty designation, iv. where a member who is not a certificated spe-cialist restricts his prac-t i c e to a b r a n c h of 12 129 m e d i c i n e m a y i n s e r t after his name "Pract ice l imited to " , v. does not list office hours, v i . is listed only in the tele-phone listing for the geo-graphical area in which the member is engaged in the practice of medi-cine, and v i i . where the practice of medicine is carried on as a partnership, cl inic, medical centre or other form of medical group lists only the name of the partnership, cl inic, medical centre or other form of medical group and lists the names of the members in their alphabetical order in the yellow page section; 31. conduct or an act relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be re-garded by members as disgraceful, dis-honourable or unprofessional. O. Reg. 577/75, s. 26. 27.—(1) In this section, (a) "member of his f a m i l y " means any person connected with a member by blood relation-ship, marriage or adoption, and (i) persons are connected by blood relationship if one is the child or other descendant of the other or one is the brother or sister of the other, (ii) persons are connected by marriage if one is married to the other or to a person who is connected by blood relationship to the other, and (iii) persons are connected by adoption if one has been adopted, either legally or in fact, as the child of the other or as the child or a per-son who is so connected by blood relationship (otherwise than as a brother or sister) to the other; (A) "pharmac is t " means a pharmacist as de-fined in Part V I of the Act . (2) A member shall not engage in the practice of medicine where the member has a conflict of interest. 1 (3) It is a conflict of interest for a member where the member or a member of his family , (a) accepts rebates from a vendor of medical appliances, drugs, materials or equipment or from a person licensed or registered under any Act regulating a health disci -pline ; (4) accepts credit from a vendor of medical appliances, materials, equipment or drugs, or from a person licensed or registered under any Act regulating a health disci -pline except where the terms of the credit provide a reasonable time of repayment, a reasonable rate of interest on the amount outstanding at any time during the period of credit, and the credit is not related to the referral of patients to the creditor ; (c) rents premises to a tenant who is a person licensed or registered under any Act regulating a.health discipline except at a rent normal for the area in which the premises are located and the amount of the rent is not related to the volume of busi -ness carried out in the premises by the tenant ; (d) rents premises from a vendor of medical appliances, materials, equipment or drugs, or from a person licensed or registered under any Act regulating a health disci -pline except at a rent normal for the area in which the premises are located and the amount of the rent is not related to the referral of patients to the landlord. (4) The selling or supplying of a drug, medical appliance, medical product or biological preparation by a member to a patient at a profit is a conflict of interest, except where the drug is necessary, (a) for an immediate treatment of the pat ient ; (b) in an emergency; or (c) where the services of a pharmacist are not reasonably readily available. (5) Notwithstanding subsection 4, it is a conflict, of interest for a member to sell an allergy preparation that he has prepared for his patient for a price that exceeds, (a) the true cost of production of the prepara-tion ; and (6) the fee for the professional component, for the member's review of the case, prescrip-tion of the material and general supervision of the member's laboratory in preparing the material . O. Reg. 577/75, s. 27. 28.—(1) A member shal l . 

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            data-media="{[{embed.selectedMedia}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
https://iiif.library.ubc.ca/presentation/dsp.831.1-0094045/manifest

Comment

Related Items