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Medical malpractice litigation in Canada Macdonald, Alastair Brodie

Abstract

The purpose of this study is twofold: 1. to present a descriptive analysis of the current state of medical malpractice litigation in Canada; and 2. to present and discuss possible alternatives to medical malpractice litigation. It is a descriptive study utilizing information obtained from questionnaires, interviews, annual reports and other documents pertaining to medical malpractice litigation. The study shows that the purpose of medical malpractice litigation is the assignment of the responsibility for the carrying of costs of losses and injuries resulting from medical treatment. It also plays a number of secondary roles, the most notable being a mechanism by which patients may hold doctors accountable for their professional behaviour. In this respect, medical malpractice litigation is unique amongst the other mechanisms of accountability in that it provides the only means by which the patient may obtain compensation for losses incurred as a result 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 plaintiff (patient) prove that his or her loss is the result of a breach of a "duty of care" by the defendant (doctor). In order to prove "trespass to the person", the plaintiff must show that no consent or an invalid consent was obtained by the defendant. An examination of the process of medical malpractice litigation in Canada indicates that barriers exist to malpractice action. Barriers viewed as being unacceptable are: financial cost, lack of knowledge and confidence in the legal system, and lack of legal justification. The unacceptable rating of this latter barrier is due to a number of factors which are felt to have an additive impact against the plaintiff. In view of the apparently large number of medical accidents; the fact that many of these accidents do not fall within the guidelines of "negligence" and "trespass to the person"; and the fact that strong barriers exist to the successful completion of eligible malpractice claims, medical malpractice litigation is viewed as an inadequate means of compensating patients for their medically caused losses. In addition, when using Calabresi's concept of "accident cost reduction", medical malpractice litigation is found to be ineffective in reducing the costs of medical accidents. Three alternatives to litigation are examined: social insurance, no-fault insurance, and a scheme developed by Calabresi. Calabresi's scheme is found to be most effective in meeting the prescribed goals of the system. Analysis of past trends in the volume and cost of medical malpractice litigation in Canada reveal that, accounting for the number of physicians at risk, there has been on average a 7% increase in the volume of new claims over the last 15 years. On the other hand, the considerable increase in costs can be explained by the increase in the number of cases in process and by inflation factors. Since only 35% of the costs may be attributed to awards and settlements, the analysis suggests that costs will continue to increase if the volume of new claims continues to increase. Overall, the study suggests that Calabresi's scheme for the partial compensation of medical accident costs should be tested through a pilot project. In addition, a number of suggestions for reforming the process of medical malpractice litigation are proposed.

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