Is Canada’s medical malpractice system working?
Starting next year, doctors’ malpractice insurance in most parts of the country will cost a lot more – more than doubling in many places. Fortunately for physicians, however, that will affect provincial health budgets more than their own practices.
Most doctors are covered by the Canadian Medical Protective Association (CMPA), a non-profit mutual defence organization that offers advice and legal representation to 91,000 physicians.
The organization recently announced fee increases due to rising settlements and awarded amounts, growing legal costs, and a five-year push to recover from a negative funding position. In Ontario there’s a $53 million shortfall; Quebec sits even; and in the rest of Canada, $111 million more is needed.
It will also release a new strategic plan in December, which contains a renewed emphasis on prevention and patient safety. “In collaboration with others, the CMPA will support the development of, and promote, harm prevention strategies. This includes a focused approach on clinical issues and practices wherein the risk of harm is relatively high. By reducing the harm to patients, this effort benefits all Canadians,” the new plan reads.
CMPA fees are broadly based on location and practice: the cost to obstetricians in Ontario will be $75,000 – up from $57,000 in 2014 – while a family physician in Quebec will pay as little as $2,200. Provinces cover most of the cost. Saskatchewan reimburses 100% of the fees; Ontario covers up to 90%, depending on the specialty.
That money goes to the CMPA to use on behalf of doctors. But some argue the CMPA is overly aggressive, fighting patients in David and Goliath battles funded by tax dollars. Others believe that money could be better used to compensate people through a no-fault system. So with these rising fees, are doctors – and the public – getting value for their money?
Are patients at a disadvantage?
In the late 1980s, there was growing concern over the rising costs and rates of medical malpractice lawsuits, fuelled by an increase in the number of cases and the amounts awarded from the 1960s to the 1980s.
Those worries haven’t been born out in Canada. There has been an increase in the overall amounts awarded, with the average rising 18% between 2011 and 2013. But the number of suits has stabilized after the 1980s and has even decreased in recent years, from 16.1 per 1,000 members in 2004 to 9.5 in 2013. That’s about 850 cases a year.
The rise in lawsuits Canadians were worried about hasn’t materialized – and some argue we now have the opposite issue, with it being too hard for patients to sue.
“The CMPA takes a very aggressive approach to defending these types of claims,” says John McKiggan, a personal injury lawyer in Halifax. “They’re certainly entitled to use all of the [options], but the overwhelming financial advantages that they have means that plaintiffs are facing some pretty steep odds.”
Patients are frustrated “because of the length and the adversarial approach,” agrees Susan McIver, author of After the Error: Speaking Out About Patient Safety to Save Lives. “To me the rub is that so much of the doctors’ fees are funded by public money, and then that money is used to fight the very people who are paying for it.”
And an Ontario Superior Court judge ruled in 2008 that the CMPA had pursued a “scorched earth policy” when defending a claim – though the patient won.
But there’s more to it than just money, says Doug Bell, associate executive director of the CMPA. Though the CMPA doesn’t affect doctors’ ability to practice, judgments and settlements are taken into account by the provincial colleges of physicians and surgeons that control doctor’s licences. “It’s not really an issue of money for the physician,” says Bell. “The issue is the physician’s integrity.”
The trials of medical lawsuits
To win a lawsuit, patients must prove that the doctor acted below the standard of care – that a reasonable doctor would have acted differently. They must also show that the breach caused harm. For example, if a physician makes a diagnosis that turns out to be wrong, that’s not necessarily grounds for a case. The error must have been one that other reasonable doctors would not have made, and must also have resulted in disability or injury.
For this and other reasons, the majority of cases fail. Only one in 10 cases make it to trial; 35% to 40% of legal actions will lead to a settlement or an award. Plus, unlike an insurance company, the CMPA is willing to spend more than an expected settlement on legal costs if it seems like the case will be won. Canada’s legal regulations also mean that the loser often has to pay a portion of the winner’s legal costs – a rule created to discourage unnecessary lawsuits, but one that may not apply well in medicine, where it’s hard to prove cause and effect.
Together, this means that “even in cases of clear liability, the plaintiff may not be able to find a lawyer to take the case,” says McKiggan. “There are very few lawyers in Canada who do medical malpractice work as a significant portion of their practice, because it’s extremely expensive, risky, and challenging.”
The no-fault alternative
New Zealand and Sweden have used no-fault insurance for more than a quarter century. Other jurisdictions, including Denmark, Norway, and France, have also incorporated no-fault into their systems. The influential Prichard Report from 1990 recommended a similar no-fault scheme for Canada.
In Sweden, patients are compensated if they have a problem that was caused by medical management that was not at an acceptable medical standard. They’re awarded a set amount, but still have the option to sue in addition.
In New Zealand, the skill of the doctor is irrelevant: any injuries caused by medical care can be compensated. A review of the New Zealand system summarized some of the issues that led to its development, citing the fact that “the risks of litigation – the difficulties of proof, the ability of advocates, the reactions of juries, and mere chance itself – turned the system into a lottery” and that the overall cost of the system was inefficient.
But New Zealand’s system isn’t all “rainbows and ponies,” says Colleen Flood, a lawyer who reviewed the issue in the Chicago-Kent Law Review and who is originally from New Zealand. “The upside is that if you’re injured, you will get some level of compensation… but you don’t get compensated very much.” Government cutbacks have resulted in the amount of the compensation declining in recent years.
The U.S.’s vaccine compensation program is also similar. It charges a small surcharge on vaccines that’s then used for a compensation fund for rare but known side effects. Closer to home, Canada’s workers’ compensation offers a similar system, with a full investigation into what caused an accident and compensation for the victims – but no option to sue.
One benefit of no-fault is cost effectiveness – the Prichard Report pointed out that more than 50% of money spent in the Canadian system went to litigation expenses, including lawyer’s fees. Only 18% of Sweden’s costs, on the other hand, go towards administrative costs. New Zealand’s are estimated around 10%.
Increasing the use of mediation and arbitration, which leave both patients and doctors more satisfied, as well as reducing the cost of decisions, may also help. McIvor suggests that we could also create a fund for patients through taxpayer money. “If we’re going to fund one side, we should fund the other,” she says.
Improving patient safety
Though we often talk about physicians being sued, the number of suits is nowhere near what it should be, says Flood. She thinks the difficulties in suing are making doctors less accountable. The CMPA pays the legal fees and settlements, and physicians’ premiums don’t rise if there’s action taken against them, so they have less motivation to change. Though there aren’t numbers for Canada, a 2007 report from the U.S. suggested 6% of physicians are responsible for 58% of medical malpractice payments.
Another issue is that since most doctors are independent contractors, when a patient sues a doctor, they’re not suing the hospital at the same time – unless they choose to include them in their suit. As a result, there’s less pressure for systemic issues to be resolved.
For its part, the CMPA will be focusing on safety next year. By analyzing claims data, the organization will look for system factors that contributed to the safety issue. It will then partner with organizations to try and address issues at the system level; offer education programs and awareness campaigns around those problems; and identify areas of medical practice with a high risk of harm.
Their goal is to reduce incidents in areas it has targeted, working on clinical and practice standards and guidelines. One of the first areas they’re looking at is labour and delivery in hospitals – which is also the most costly to insure.
“Obviously the reason physicians belong to the CMPA is for the medical legal protection, but we’re also making a strong emphasis on trying to improve the safety of the health care system,” says Bell. “The best protection for physicians and their patients is to prevent the patient harm.”