First published in The Lawyers Weekly June 13, 2003, Vol. 23, No. 7
The vast majority of medical malpractice victims do not sue. Conversely, most would-be litigants have not suffered injury from substandard care.
In the U.S., though not in Canada, most medical malpractice indemnity payments are made on behalf of caregivers who were not negligent.
Even when there has been medical negligence, traditional litigation may not provide the best resolution.
Malpractice Unsued
There are fewer than 1400 Statements of Claim filed in Canada each year. Of those, 60% are flawed Actions and will be abandoned.
The puzzle is not why there is so much medical malpractice litigation, but why there is so little. Indeed, the biggest unanswered question in medical malpractice litigation is why so few victims sue.
According to the massive New York State study out of Harvard Medical School in the early 1990s, only about 15 out of every thousand medical malpractice victims file suit. Why?
Economic disparity is the most obvious reason. Few plaintiffs can match the average $100-150K that the Canadian Medical Protective Association (CMPA) will spend out of its nearly $2B war-chest to take a case to trial. It is a truism that Plaintiff counsel stand to lose a lot if they fail, whereas Defence counsel are paid by the hour, win or lose.
Injured patients and their families may lack awareness that negligence has occurred. Knowledgeable caregivers are often secretive about errors in both verbal and written communications.
Medical Experts are not equal. Whereas they are the fastest growing sector of the U.S. medical malpractice industry, Plaintiff hired-guns are still virtually unknown in Canada. By contrast, Defence-oriented physicians are plentiful, and the best a Canadian Plaintiff can hope for is a fairminded Medical Expert Witness.
Lack of agreement between physicians on Standard of Care favours the Defendant. Consensus between physicians about Standards is in the average-to-poor range, according to the majority of empirical evidence. Our adversarial legal system is a root cause: significant improvement in agreement about a case would require face-to-face discussion by a minimum of five physician reviewers.
These, then, are some of the obvious reasons why few victims of medical negligence proceed to filing a Statement of Claim.
No Cause
Conversely, only a small minority of would-be clients have a viable Cause of medical malpractice Action. Experienced plaintiff counsel expect to reject up to 95% of hopefuls. Even when Negligence can be proven, Causation may fail; when care was demonstrably substandard and caused the injury, Quantum of Damages may be insufficient.
Would-be litigants frequently equate adverse outcome with negligence. The medical propaganda machine is in no small part responsible for the over-inflated public perception of what medicine can fix.
The possible results of a given therapy are often wide-ranging and may include worsening of the condition. We all indulge in magical thinking to greater or lesser degree - "it won’t happen to me" - and that tendency is greater in the fearful state of needing a life-threatening medical condition fixed.
Lack of interpersonal skills and failure to show caring trigger many ill-advised malpractice enquiries. Disclosing personal error is not only ethically mandated but it also discourages ill-advised litigation.
More remarkable still, the large majority of U.S. indemnity payments are made to litigants who have not suffered injury from medical malpractice. Particularly for the smaller insurance companies, cases with Quantum in the $20K range are often not worth defending, and, on short-time economic grounds at least, it is more efficacious to quickly get such Actions off the books.
Jurors not infrequently make emotional judgments in favour of attractive and empathic Plaintiffs, on the basis of severity of injury rather than proof of negligence.
Both settlements for economic expediency and "faulty" jury awards are probably much rarer in Canada. It is only occasionally that the CMPA will settle a flawed case - when the medical records have been fraudulently altered, or because the Defendant is not credible for other reasons.
Alternatives to Litigation
Patients who have an unexpectedly adverse outcome following medical or surgical treatment need "closure", an understanding of what has happened.
When the result of therapy is disappointing or worse, our culture encourages us to look for someone to blame. Reality is that most poor treatment results are not caused by medical negligence.
Articulate, unhurried explanation by a trained and experienced caregiver may result in greater satisfaction than successful litigation.
Where the caregiver’s behaviour has been off-hand, uncaring or downright rude, formal Complaint to the Hospital, provincial College of Physicians and Surgeons, or other licensing body, may be more appropriate than pursuit of medical malpractice litigation. Indeed there are many instances of viable Actions in which the College’s response to such Complaint supports the Plaintiff’s position.
No-fault compensation does not address the plaintiff’s need for accountability, though it may prove an economically more efficient delivery system for indemnity.
Arbitration and mediation are in their infancy in the medical malpractice field and they may eventually prove to be viable alternatives to a litigation process that currently takes an average of 5 years. Ontario’s first, faltering steps towards ADR in medical malpractice litigation are to be applauded.
In Conclusion
Though most medical negligence hopefuls have no case, those that do have a Cause of Action represent a small percentage of the patients who are injured by medical malpractice.
Our current methods of compensating the victims are very inefficient, costing as they do $2 to deliver $1 of indemnity payment.
Our society’s biggest challenge in this area is to decimate rates of negligent medical error. Medical malpractice litigation represents the tip of the iceberg.