Par Patrick Garon-Sayegh, candidat au doctorat à l’Université de Toronto
The CBC recently reported on the challenges that negligently injured patients face when trying to obtain compensation for their injuries from physicians. Unlike commentators in the United-States, who often deplore that their healthcare system is facing a “malpractice crisis” (see e.g. here, here, here and here), the CBC’s recent coverage focused on a distinctively Canadian institution: the Canadian Medical Protective Association (CMPA). The CMPA provides, among other things, legal representation to Canadian physicians who are sued for malpractice. It is, in effect, the medical profession’s liability insurer
A CBC investigation on the CMPA was featured on a segment of The Current (read the synopsis here; listen or read the show’s transcript here). It was also discussed on CBC news’ The National (read and watch it here).
Here are some of the main points made by the CBC:
- The number of injured patients that are successful in their lawsuits against physicians has been decreasing over the past 40 years. A the same time, the number of malpractice lawsuits has decreased while the number of physicians has increased.
- It is difficult for injured patients to find lawyers willing to represent them because medical malpractice cases are complex, very expensive to litigate, and non-specialist lawyers are reluctant to take them. Moreover, specialist lawyers will rarely take cases that are worth less than $250,000 in damages.
- The CMPA has 4.5 billion dollars “to work with.” This creates a highly uneven playing field between injured patients and their CMPA-backed physicians. Given its resources, and the fact that it hires the “top lawyers in the country,” the CMPA is described as an “intimidating body to go up against.”
- The CMPA is further described as being different from other insurers because it also defends physicians’ reputation: “even if a patient has been harmed but can make an argument why doctors shouldn’t be held accountable . . . they will throw a lot of resources to defend their doctor” (quotes from The Current).
Implied in the CBC’s reporting is the idea that the CMPA is winning because it has resources that individual injured patients simply cannot match. It is also implied that the CMPA is morally suspect: because it cares more about physicians’ reputations than about injured patients, it uses its vast resources to stamp out injured patients’ claims, regardless of whether or not they are legitimate.
The sympathetic story of Jim Wiseman, who was interviewed by the CBC, illustrates these concerns. Mr. Wiseman is 78 years old. In 2016, he had to have abdominal surgery as part of his cancer treatment. A sponge was left inside him during surgery, and he suffered severe, life-changing complications as a result. He is suing his surgeon for compensation.
Mr. Wiseman’s story is undoubtedly a sad one. Moreover, it is clear that a mistake was made in his case: a sponge should never have been left inside him. Even the CMPA’s spokesperson described this type of mistake as a “never event.” Yet more than two years have passed, and Mr. Wiseman has not been compensated. It appears, therefore, that even in the case of “never events,” patients can still face an uphill battle when trying to obtain compensation.
But is the CMPA responsible for this unfortunate situation? Can we, in all fairness, blame the CMPA for the fact that injured patients face an uphill battle when they sue their physicians for compensation?
I argue here that there are reasons to doubt that the CMPA is to blame for injured patient’s legal difficulties. And while I cannot definitively exonerate the CMPA, I hope to at least challenge the CBC’s “big bad CMPA” narrative, which pits vulnerable and sympathetic patients against a huge faceless organization devoted to defending one of Canada’s most privileged occupational groups. This narrative is appealing: it is a classic David versus Goliath story. But it oversimplifies the issues at stake in the compensation of patients for medical malpractice.
My argument focuses on a mundane but essential feature of all litigation: the requirement that plaintiffs provide evidence to support their claims.
In order to obtain compensation, injured patients need to prove that their physician committed a fault—i.e. made a blameworthy mistake. I concentrate here on malpractice of the type that leads to a physical injury. There are other types of malpractice, but I cannot discuss them here for lack of space. I also only discuss the evidentiary difficulties related to fault, and leave out the challenges related to causation and damages, which must also be proven by the injured patient. (See here for a general guide to medical malpractice law in Canada.)
Proving fault in medical malpractice cases is a very technical task that can typically only be achieved by hiring medical experts. Indeed, the average person (including the average judge and lawyer) has no idea as to what counts as “reasonable” medical care—reasonableness being the standard of care to which physicians are held in malpractice cases. As a general rule, medical expertise is required to determine whether care was reasonable or not. Hence the need for medical experts who need to be paid, in addition to lawyer’s fees, for the effort they put into helping lawyers mount their case.
It is important to understand that litigation resting on technical claims is almost always expensive, regardless of the field. By “technical claims” I mean claims that are grounded in knowledge and technical apparatus that are understood and designed by small groups of people who have specific training. Such claims cannot be evaluated by the uninitiated. And the more technical things get, the more you need experts to resolve the problem. In other words, suing any type of expert in a technical domain—be it a physician, plumber, engineer, veterinarian or accountant—is going to be expensive when you are alleging that they committed a fault within their domain of technical expertise.
Medical malpractice lawsuits, then, are usually expensive based on the fact that they involve suing experts (physicians) for faults allegedly committed within their technical domain. And as a general rule, the more technical the issues at stake, the more difficult—and therefore expensive—it is to prove one’s claims of fault.
To this, one might reply: what about obvious cases where there the alleged errors aren’t very technical? Surely it doesn’t take much expertise to know that a sponge shouldn’t have been left in Mr. Wiseman. The cost of proving malpractice in such a case cannot be that high, because the fault is so obvious.
To respond to this objection, let’s begin with a nonmedical example to crystallize the issues. Suppose an engineer designs a bridge, the bridge is built, and then the bridge collapses. Clearly, something went wrong somewhere—a mistake was certainly made. Bridges are not supposed to collapse. The difficult question is: what exactly went wrong? We need to know this in order to know who to blame. Was the collapse caused by a faulty calculation made by the engineer? Was it caused by steel beams in the bridge that were incorrectly manufactured? Or was it caused because workers misread the labels on cement bags and ended up mixing and pouring the wrong type of concrete? The distinction is important, because we typically cannot blame the engineer, and hold her legally responsible, for faultily manufactured steel beams and mistakenly poured cement.
Of course, from the perspective of the persons who suffered injuries as a result of the bridge collapsing, this may seem like lawyerly nitpicking. The injured persons see that something clearly went wrong, and they want to be compensated. For many (if not all) of them, it doesn’t matter who gets the blame. All that matters is that someone gets blamed, and that they get compensated (or alternatively, that they simply get compensated without anyone being blamed).
But from the legal perspective—and that of the people who need to live with the blame, such as the engineer—it is unjust to blame someone for injuries and make them pay reparations if they have not committed a fault (or otherwise deviated from an identifiable norm).
Going back to the forgotten sponge, we now find ourselves asking a number of questions. How many steps were involved in Mr. Wiseman’s surgery? How many people were involved? How many sponges? How big were the sponges? Who was responsible for keeping track of the sponges? All of these questions need to be resolved if we are to fairly assign blame to someone. And each of these questions opens up a realm of possibilities wherein the surgeon might not be the right person to blame for the outcome. For example: maybe the surgeon had four people assisting her, and she was not the person in charge of counting the sponges. Would it be just to blame the surgeon if that were the case? Not only would it be unjust, but it would not meet the law’s basic demand that the plaintiff prove that the defendant did something unreasonable.
So even in the case of a “never event,” it can be difficult to find a specific fault when a given incident is part of a complicated process involving many people and things. Assigning blame is as complicated as it is serious. And as I mentioned above, things only get more complicated once causation and damages are factored in.
If we are going to worry about the decrease in successful lawsuits by patients over the past 40 years, we ought to look beyond the CMPA (which, incidentally, has been around since 1901) and consider other changes in medical and legal practice that have taken place in that time. One such change is the phenomenal increase in the technological sophistication of medical practice and intervention. The more technology gets infused into medicine and the more sophisticated and refined medical knowledge becomes, the more technical medical practice becomes. Medical practice’s increased technicality can, in turn, often result in more technical expertise being required to prove fault in a case. All this cascades into legal practice: the more technical medical practice becomes, the more technical medical mal-practice becomes. Specialized lawyers become more and more of a requirement, and more specialized lawyers cost more and are harder to find.
The increase in technology combines with another development: the increased specialization of the medical profession and healthcare personnel in general, which has resulted in increased multidisciplinary care. Healthcare is still too often imagined based on what Atul Gawande calls the “Master Builder” view, according to which healthcare is delivered via “a system in which a lone Master Physician with a prescription pad, an operating room, and a few people to follow his lead plans and executes the entirety of care for a patient, from diagnosis through treatment.” This view is outdated: the contemporary reality of healthcare is often quite different.
Physicians are regularly part of broad and complicated networks of healthcare professionals, administrators, and material resources. Being integrated into such networks entails that physicians must contend with a variety of administrative and material constraints. Many of these constraints are perfectly legitimate: they can enable physicians, protect patients, or both. But other constraints are problematic: they can hinder physicians, endanger patients, or both. And many constraints are outside of physicians’ control—at least when it comes to their clinical practice. It is, of course, true that the degree to which physicians are integrated into a network of constraints varies greatly. A general practitioner in a rural setting does not have to contend with the same degree of constraints, or the same types of constraints, as a general practitioner in a university hospital situated in a large urban center. But there are always constraints, and the network of constraints within which a physician operates has an impact on how a given physician’s work is evaluated, and the extent to which the physician’s conduct is seen as blameworthy. Sometimes physicians make mistakes but the network of constraints within which that mistake occurred will be such that it is unfair to lay the blame solely—or even at all—at the physician’s feet.
To be clear: I do not claim that the increase of highly technical–technological medicine and multidisciplinary care are to blame for injured patient’s decreased success in malpractice lawsuits. I argue instead that healthcare has significantly changed over the past 40 years as a result of these increases, and that these increases should be examined by anyone seeking to provide robust explanation of the challenges patients face when trying to obtain compensation for medical malpractice.
In sum, blaming the inaccessibility of compensation for medical injuries on the CMPA overlooks several realities of malpractice litigation and medical practice. In so doing, we risk oversimplifying the problem of making compensation accessible to those who suffer iatrogenic harm (itself a topic of discussion for decades), and underestimating challenges related to reform. For example, one way towards reform would be no-fault compensation (see e.g. this article). While such a proposal appears very promising, it might not completely extinguish the evidentiary issues discussed above. That discussion, however, must be left for another time.
I conclude by agreeing with the CBC on one key point. Compensating patients for injuries related to medical malpractice is an access to justice issue that raises a fundamental question: what do we—either as the collective political community, or as individual physicians, lawyers and healthcare workers—owe people who come under the care of others?
This content has been updated on 16 May 2019 at 16 h 09 min.