The Nature of Medical Malpractice Litigation
Medical malpractice actions are unlike most civil litigation. They are typically complex, time consuming and vigorously defended. The claims are never settled on a “nuisance” basis. In fact, the Canadian Medical Protective Association (the association that arranges for the defence of the majority of doctors in Canada) is quite prepared to expend hundreds of thousands of dollars to defend a $5,000.00 action that it regards as defensible. Further, the law firms that defend doctors are limited to a few firms that are carefully selected. These firms are widely known for their skill, extensive experience and vigilant defence of medical malpractice actions.
Notwithstanding the above, perhaps the most significant deterrent to pursuing a medical malpractice claim is the expense. A medical malpractice action invariably requires expert evidence from several medical professionals other than treating physicians. The costs associated with retaining these experts can be enormous. In complex cases the out of pocket costs (disbursements) incurred by a plaintiff can easily exceed $100,000.00. In fact, in a recent pediatric case we incurred disbursements in excess of $150,000.00 prior to the commencement of trial.
Kemp Barristers recognizes that there are very few individuals who can afford to pay their legal fees and disbursements as a case proceeds. As a result, lawyers who practice in this area will often carry the financial costs of the litigation until trial or settlement pursuant to a contingency fee arrangement. Consequently, it is necessary for a law firm to be very selective in the cases that it agrees to take on.
Before Kemp Barristers agrees to carry such financial costs it will, in the majority of cases, ask a potential plaintiff to provide an initial “investigation retainer” to assist in the determination of whether there is a case that merits further pursuit. This retainer is used to cover the costs of acquiring copies of all of the relevant medical records and obtaining a preliminary opinion from one or more medical professionals as to whether the expert believes there was negligence and whether the negligence “caused” the damages. An investigation retainer is necessary due to the fact that a firm that agrees to incur the costs of every investigation will be on the fast track to bankruptcy!
The Selection Process
In any given year Kemp Barristers will receive well in excess of one hundred inquiries from individuals who believe they may have a medical malpractice claim. It is our experience that only 2 out of every 10 inquiries will proceed to an “investigation” of a possible claim. Out of every 10 investigations that are conducted, Kemp Barristers believes that 3 or 4 cases have merit in pursuing further. This means that, in our experience, only 6 – 8 inquiries out of every 100 result in legal action.
The Assessment of a Potential Claim
Kemp Barristers considers a number of factors when evaluating whether to take on a case. These include:
i. Limitation Period
In Ontario, an action against a medical professional or hospital for causes of action arising after December 31, 2003 must be commenced within two years of the date that the plaintiff knew or ought to have known of the negligence alleged. Prior to December 31, 2003 the limitation period for the commencement of an action against a medical professional was one year.
These limitation periods do not apply to minors until they attain the age of majority (18) or to persons who are not mentally competent.
Some medical malpractice inquires will reveal a serious limitations problem and such matters are unlikely to be accepted.
The amount of damages that might be realized with any given claim is a significant factor involved in the assessment. Typically, the higher the amount of potential damages, the greater the likelihood that a firm will be prepared to waive the investigation retainer, carry disbursements and defer legal fees. Potential cases in which the disbursements are likely to exceed the amount of damages will probably be turned down.
iii. The Type of Claim
A significant factor in the decision to investigate a potential claim is the very nature of the claim itself. For example, cases involving an alleged failure to diagnose breast cancer can be difficult to pursue given the difficulties associated with establishing “causation” – specifically, that an earlier diagnosis would have made a material difference in the outcome. Thus, cases that involve a delayed diagnosis of less than six months are likely to be declined.
Similarly, it is rare that Kemp Barristers will accept a case that is based solely on an alleged failure to advise the patient with all of the risks associated with a given procedure.
On the other hand, cases involving retained objects (i.e. sponge) following surgery almost always warrant further consideration.
iv. Medical Comment
There is a general reluctance among doctors to comment critically upon the care and treatment a patient received previously. However, those cases where critical comments have been made almost always warrant further investigation.
The Critical Elements of a Malpractice Claim
A plaintiff in a medical malpractice action must prove three critical elements::
* Negligence (Did the health care professional provide care below the applicable standard?)
* Damages (Did you suffer damages as a result of the negligence)
* Causation (Did the negligence cause your damages?)
Liability for lack of informed consent in a medical case also has two important components to it:
* Lack of Informed consent (Did the health care provider tell you about the risks and benefits of a particular procedure? In this context, risks include those which are material or those which have serious potential consequences.)
* Causation (Would a reasonable person in your position have gone ahead and had the procedure had they been told of the risks and benefits?)
To be successful at trial, a plaintiff must prove that the health care provider was negligent. This is typically achieved through the use of an expert witness. The expert will testify in court as to the appropriate “standard of care” that should have been exercised and contrast that with what was actually provided. To prevail a judge must be satisfied that the provider fell below the applicable standard of care.
Standard of Care
Loosely defined, the standard of care is that degree of skill and care to be expected of a provider with that individual’s training and experience. The standard in any given case will vary depending on the circumstances. For example, a higher standard may apply where a procedure is elective compared to a procedure that is performed in an emergency. In an emergency there is little time to consult other physicians and reflect on the situation. Similarly a health care provider at a major urban hospital might be held to higher standard than would be the case in a rural setting.
Since the standard changes depending upon the circumstances, in most cases, it is difficult to determine at the first meeting if any particular care has fallen below the standard at any given time. To assess this, we retain one or more expert witnesses (a similarly situated health care provider practicing within the same specialty), to review the medical records and provide an opinion. Except in extremely unusual situations, a medical malpractice case without a supportive expert opinion is destined to fail.
In practice, we attempt to obtain an expert who is highly qualified. The additional credibility associated with such highly qualified experts is often important in court where these trials can become a battle of the experts.
When evaluating this aspect of a case, we consider whether we can obtain an appropriate, supportive opinion from an expert who will be willing to testify at trial. If the conclusion is that we cannot, then we will not accept the case.
It is not enough to show that a health care provider’s care fell below the standard. We must also be able to demonstrate that the failure to meet the standard led to the injury whether physical, economical or both. This area of medicine is quite complex and is frequently the area of greatest contention in medical malpractice cases. In some cases, defence experts take the position that nothing the health care provider did or didn’t do led to the untoward outcome.
By way of illustration, if a physician fails to diagnose pancreatic cancer in a timely fashion, invariably the defence will allege that the patient would have died, even if treatment had begun earlier.
As with the applicable standard, the issue of causation is fought almost exclusively with expert witnesses. These witnesses must be able to convince the court of the link between the malpractice and the damages. The presence of preexisting injuries, while not fatal to a case, is always cause for concern.
When evaluating causation, like standard, we consider whether we can obtain an appropriate, supportive opinion from an expert who will be willing to testify at trial. If we cannot, we cannot accept the case.
It is very frustrating when a case is turned down because of problem with causation. In this case, you have a doctor who has often clearly made a mistake, but the client is unable to recover anything.
Another potential cause of action against a health care provider (normally a physician) relates to the concept known as informed consent. Except in extraordinary circumstances, consent to a medical procedure must be informed. That means that for your consent to be valid it must be made after you have been advised of the material risks and benefits. It is not necessary that you be advised of rare complications unless they may result in serious injury or death. If you haven’t given informed consent for the procedure then the physician will be liable and damages will result.
There is also a causation component to informed consent. Even if it is established that a procedure was performed without your informed consent, there will be no liability if it can be demonstrated that a reasonable person in your shoes would have consented to the procedure even if you had been appropriately told about the risks and benefits.
In evaluating claims of this nature we may employ the assistance of expert consultants to advise as to what risks ought to have been disclosed but as well, must evaluate the relative credibility of the parties.
There may be other causes of action (types of claims) that you can advance depending on the circumstances.
If we can find supportive opinions the next element we consider is the amount of possible damages that a client might receive if successful. It is an unfortunate fact of life that the costs of bringing a medical malpractice action can be significant. In some cases these costs can exceed the amount recovered. As a result, there must be significant damages for a case to be viable. What constitutes significant in any given case will vary with the potential complexity of the case.
The final decision of a lawyer as to whether or not to accept a case has to be based upon an analysis of all of the factors. Such an analysis will result in a decision as to whether the case can be successfully advanced and if so, the probable amount of a settlement or judgment. At that point, it generally becomes a purely business decision as to whether or not it makes sense to pursue the claim.