MEDICAL MALPRACTICE CASES
A recent Study found that, in 2001, 1 in 13 people admitted to Canadian hospitals suffered one or more adverse events. The study defined adverse events as unintended injuries or complications resulting in death, disability, or prolonged hosptial stay.
Medical malpractice cases arise when someone is injured as a result of negligence or intentional actions of health professionals (doctors, nurses, therapists, etc) or health care institutions (hospitals or clinics).
Common medical malpractice cases include, preventable injuries to babies during birth, failure to diagnose and treat serious medical conditions, medication errors, infections caused by failure to follow infection control procedures, anesthesia errors, and surgical errors.
From the perspective of the injured person and personal injury lawyer, medcial malpractice claims/lawsuits are the most difficult of all personal injury cases. With the possible exception of class action lawsuits, medical malpractice claims the most highly specialized area of personal injury law in Canada.
There are two main reasons why medcial malpractice cases are so difficult.
The first reason is that, in order to properly prosecute medical malpractice claims, a lawyer must have significant expertise in both law and medicine. Medical malpractice cases always involve complex issues of causation and medical standards. Some lawyers will unwittingly taken on un-winable cases, or fail to win the winable cases, because of a lack of understanding of complex medical issues.
The second reason is that Canadian doctors are defended by an organization called theCanadian Medical Protective Association (CMPA). The CMPA is a defence organization, not an insurance company. Whereas the ultimate purpose of an insurance company is to make money for shareholders, the ultimate purpose of the CMPA is to defend doctors. This is significant because it means the CMPA defends cases more aggressively than would a typical insurance company. Whereas an insurance company will engage in cost-benefit analysis when deciding whether to continue to defend a claim, the CMPA will spend more to defend a claim that it would cost them to simply pay the claim. This has the effect of discouraging frivioulous claims, but also means may legitimate claims will be abandoned because it will cost the injured person more to make the claim than they would get even if they eventually won in court.
The CMPA's statistics speak for themselves. Only one-third of medical malpractice lawsuits resolved in 2003 resulted in payment to the injured person. Two-thirds of the claims were dismissed, discontinued, or abandoned by the injured person.