Canadian Medical Malpractice Law in 2011: Missing the Mark on Patient Safety

Abstract

Canadian tort law, as it applies to medical malpractice, appears relatively settled from a systems perspective; there is no "burning platform" driving major tort reform in this area of the law. Despite the fact that Canada compares relatively well with other countries in terms of its rates of adverse events, over the last decade, various provinces have encountered grave systemic problems, suggesting that there may be a role for reform of medical malpractice law and that such reform would contribute to better addressing patient safety issues.

Currently, Canadian malpractice law unduly favours physicians. From a risk reduction perspective, physicians are individually shielded from the deterrent effects of potential medical malpractice liability, thanks to the CMPA's rules for setting insurance premiums and significant subsidization of those premiums by provinces. From the plaintiff patient's perspective, there are enormous challenges to successfully litigating medical error for a number of reasons: Patients are discouraged from pursuing claims in the first place by both the CMPA's reputation for aggressive litigation of claims and Canadian rules for the awarding of costs. The inherent difficulties in establishing causation in medical malpractice cases are also combined with broad defenses for physicians and with caps on non-pecuniary damage awards. As a result, only a small proportion of claims succeed at trial, raising the question whether short limitation periods, unequal bargaining power, prohibitive rules on the awarding of costs, and caps on non-pecuniary damages have conspired to create an access to justice problem?

While governments at both the federal and provincial levels have been more focused on strategies for the prevention of medical malpractice, efforts have at times been slow, scattershot, and ineffectual. This paper argues that governments should take a more proactive role in the promotion of patient safety, in part through ensuring that medical malpractice law better meets the mark of improving patient safety.